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Exhibit 10.2
TOMAX TECHNOLOGIES, INC.
2000 STOCK OPTION AND AWARD PLAN
Tomax technologies, inc., a Utah corporation (the "Company"), hereby
adopts this 2000 Stock Option and Award Plan (the "Plan"), effective as of the
1st day of January, 2000 under which options to acquire stock of the Company or
bonus stock may be granted from time to time to employees, officers, and
directors of the Company or its subsidiaries. In addition, at the discretion of
the board of directors or other committee or administrator of this Plan, options
to acquire stock of the Company or bonus stock may from time to time be granted
under this Plan to other individuals who contribute to the success of the
Company or its subsidiaries but who are not employees, officers, or directors of
the Company, all on the terms and conditions set forth herein.
1. Purpose of the Plan. The Plan is intended to aid the Company in
maintaining and developing a management team, attracting qualified officers and
employees capable of assisting in the future success of the Company, and
rewarding those individuals who have contributed to the success of the Company.
It is designed to aid the Company in retaining the services of executives and
employees and in attracting new personnel when needed for future operations and
growth and to provide such personnel with an incentive to remain employees of
the Company, to use their best efforts to promote the success of the Company's
business, and to provide them with an opportunity to obtain or increase a
proprietary interest in the Company. It is also designed to permit the Company
to reward those individuals who are not employees of the Company but who are
perceived by management as having contributed to the success of the Company or
who are important to the continued business and operations of the Company. The
above aims will be effectuated through the granting of options ("Options") to
purchase shares of common stock of the Company, no par value (the "Stock"), or
the granting of awards of bonus stock ("Stock Awards"), all subject to the terms
and conditions of this Plan. It is intended that the Options issued pursuant to
this Plan include, when designated as such at the time of grant, options which
qualify as Incentive Stock Options ("Incentive Options") within the meaning of
section 422 of the Internal Revenue Code of 1986, as amended (the "Code"), or
any amendment or successor provision of like tenor. If the Company has a class
of securities registered under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), it is intended that this Plan will comply with the
applicable provisions of Rule 16b-3 ("Rule 16b-3") promulgated under the
Exchange Act or any amendment or successor rule of like tenor.
2. Shareholder Approval. The Plan shall become effective immediately on
adoption by the board of directors of the Company (the "Board") and awards under
the Plan can be made at that time or at any subsequent time. The Plan shall be
submitted to the Company's shareholders in the manner set forth below:
(a) Within twelve months after the Plan has been adopted by the
Board, the Plan shall be submitted for approval by those shareholders of
the Company who are entitled to vote on such matters at a duly held
shareholders' meeting or approved by the unanimous written consent of
the holders of the issued and outstanding Stock of the Company. If the
Plan is presented at a shareholders' meeting, it shall be approved by
the affirmative vote of the holders of a majority of the issued and
outstanding Stock in attendance, in person or by proxy, at such meeting.
Notwithstanding the foregoing, the Plan may be approved by the
shareholders in any other manner not inconsistent with the Company's
articles of incorporation and bylaws, the applicable
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provisions of state corporate laws, and the applicable provisions of the
Code and regulations adopted thereunder.
(b) In the event the Plan is so approved, the secretary of the
Company shall, as soon as practicable following the date of final
approval, prepare and attach to this Plan certified copies of all
relevant resolutions adopted by the shareholders and the Board. On such
approval, all Options previously granted under this Plan shall remain in
full force and effect, subject to the terms of this Plan, and shall be
deemed to have been granted as of the date of the action taken by the
Board or other committee or administrator of this Plan in awarding such
Options.
(c) Failure to obtain shareholder approval on or before the date
that is twelve months subsequent to the adoption of this Plan by the
Board shall not invalidate this Plan or affect awards previously granted
under the Plan; provided that, in such event, none of the Options issued
under this Plan will qualify as Incentive Options.
3. Administration of the Plan. Administration of the Plan shall be
determined by the Board. Subject to compliance with applicable provisions of the
governing law, the Board may delegate administration of the Plan or specific
administrative duties with respect to the Plan, on such terms and to such
committees of the Board as it deems proper. Any Option or Stock Award approved
by the Board shall be approved by a majority vote of those members of the Board
in attendance at a meeting at which a quorum is present. Any Option or Stock
Award approved by a committee designated by the Board shall be approved as
specified by the Board at the time of delegation. The interpretation and
construction of the terms of the Plan by the Board or a duly authorized
committee shall be final and binding on all participants in the Plan absent a
showing of demonstrable error. No member of the Board or duly authorized
committee shall be liable for any action taken or determination made in good
faith with respect to the Plan.
The Board's or duly authorized committee's determination under the Plan
(including without limitation determinations of the persons to receive Options
or Stock Awards, the form, amount, and timing of such Options or Stock Awards,
the terms and provisions of such Options or Stock Awards, and the agreements
evidencing same) need not be uniform and may be made by the Board or duly
authorized committee selectively among persons who receive, or are eligible to
receive, Options or Stock Awards under the Plan, whether or not such persons are
similarly situated.
4. Shares of Stock Subject to the Plan. A total of 750,000 shares of
Stock may be subject to, or issued pursuant to, Options or Stock Awards granted
under the terms of this Plan. Any shares subject to an Option or Stock Award
under the Plan, which Option or Stock Award for any reason expires or is
forfeited, terminated, or surrendered unexercised as to such shares, shall be
added back to the total number of shares reserved for issuance under the terms
of this Plan. If any right to acquire Stock granted under the Plan is exercised
by the delivery of shares of Stock or the relinquishment of rights to shares of
Stock, only the net shares of Stock issued (the shares of Stock issued less the
shares of Stock surrendered) shall count against the total number of shares
reserved for issuance under the terms of this Plan.
5. Reservation of Stock on Granting of Option. At the time of granting
any Option under the terms of this Plan, there will be reserved for issuance on
the exercise of the Option the number of shares of Stock of the Company subject
to such Option. The Company may reserve either authorized but unissued shares or
issued shares that have been reacquired by the Company.
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6. Eligibility. Options or Stock Awards under the Plan may be granted to
employees, including officers and directors, of the Company or its subsidiaries,
as may be existing from time to time, and to other individuals who are not
employees of the Company as may be deemed in the best interest of the Company by
the Board or a duly authorized committee. Such Options or Stock Awards shall be
in the amounts, and shall have the rights and be subject to the restrictions, as
may be determined by the Board or a duly authorized committee at the time of
grant, all as may be within the general provisions of this Plan.
7. Term of Options and Certain Limitations on Right to Exercise.
(a) Each Option shall have the term established by the Board or
duly authorized committee at the time the Option is granted but in no
event may an Option have a term in excess of ten years.
(b) The term of the Option, once it is granted, may be reduced
only as provided for in this Plan or under the written provisions of the
Option.
(c) Unless otherwise specifically provided by the written
provisions of the Option, no holder or his or her legal representative,
legatee, or distributee will be, or shall be deemed to be, a holder of
any shares subject to an Option unless and until the holder exercises
his or her right to acquire all or a portion of the Stock subject to the
Option and delivers the required consideration to the Company in
accordance with the terms of this Plan and the Option and then only to
the extent of the number of shares of Stock acquired. Except as
specifically provided in this Plan or as otherwise specifically provided
by the written provisions of the Option, no adjustment to the exercise
price or the number of shares of Stock subject to the Option shall be
made for dividends or other rights for which the record date is prior to
the date the Stock subject to the Option is acquired by the holder.
(d) Options under the Plan shall vest and become exercisable at
such time or times and on such terms as the Board or a duly authorized
committee may determine at the time of the grant of the Option.
(e) Options granted under the Plan shall contain such other
provisions, including, without limitation, further restrictions on the
vesting and exercise of the Option, as the Board or a duly authorized
committee shall deem advisable.
(f) In no event may an Option be exercised after the expiration
of its term.
8. Exercise Price. The exercise price of each Option issued under the
Plan shall be determined by the Board or a duly authorized committee on the date
of grant.
9. Payment of Exercise Price. The exercise of any Option shall be
contingent on receipt by the Company of cash, certified bank check to its order,
or other consideration acceptable to the Company; provided that, at the
discretion of the Board or a duly authorized committee, the written provisions
of the Option may provide that payment can be made in whole or in part in shares
of Stock of the Company that have been owned by the optionee for more than six
months or by the surrender of Options to acquire Stock from the Company that
have been held for more than six months, which Stock or Options shall be valued
at their then fair market value as determined by the Board or a duly authorized
committee. Any consideration approved by the Board or a duly authorized
committee that calls for the payment of the exercise price over a period of more
than one year shall provide for interest, which shall not be included
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as part of the exercise price, that is equal to or exceeds the imputed interest
provided for in section 483 of the Code or any amendment or successor section of
like tenor.
10. Withholding. If the grant of a Stock Award or the grant or exercise
of an Option pursuant to this Plan, or any other event in connection with any
such grant or exercise, creates an obligation to withhold income and employment
taxes pursuant to the Code or applicable state or local laws, such obligation
may, at the discretion of the Board or a duly authorized committee and to the
extent permitted by the terms of the Option or Stock Award and the then
governing provisions of the Code and the Exchange Act, be satisfied (i) by the
holder of the Option or Stock Award delivering to the Company an amount of cash
equal to such withholding obligation; (ii) by the Company withholding from any
compensation or other amount owing to the holder of the Option or Stock Award
the amount (in cash, Stock, or other property as the Company may determine) of
the withholding obligation; (iii) by the Company withholding shares of Stock
subject to the Option or Stock Award with a fair market value equal to such
obligation; or (iv) by the holder of the Option or Stock Award either delivering
shares of Stock that have been owned by the holder for more than six months or
canceling Options or other rights to acquire Stock from the Company that have
been held for more than six months with a fair market value equal to such
requirements. In all events, delivery of shares of Stock issuable on exercise of
the Option or on grant of the Stock Award shall be conditioned upon and subject
to the satisfaction or making provision for the satisfaction of the withholding
obligation of the Company resulting from the grant or exercise of the Option,
grant of the Stock Award, or any other event. The Company shall be further
authorized to take such other action as may be necessary, in the opinion of the
Company, to satisfy all obligations for the payment of such taxes.
11. Incentive Options -- Additional Provisions. In addition to the other
restrictions and provisions of this Plan, any Option granted hereunder that is
intended to be an Incentive Option shall meet the following further
requirements:
(a) The exercise price of an Incentive Option shall not be less
than the fair market value of the Stock on the date of grant of the
Incentive Option as determined by the Board or a duly authorized
committee based on the closing price for the Stock as quoted on a
registered national securities exchange or, if not listed on a national
exchange, the Nasdaq Stock Market ("Nasdaq"), over the five-day trading
period immediately prior to the date of grant of such Incentive Option,
or, if not listed on such an exchange or included on Nasdaq, the closing
price (or, if no closing price is available from sources deemed reliable
by the Company, the average of the closing bid and asked quotation) for
the Stock on the close of business on the trading day last preceding the
date of grant of such Incentive Option, or, if no such information is
available, as determined by the Board or a duly authorized committee
through any other reliable means of determination available and
permitted by the applicable provisions of the Code.
(b) No Incentive Option may be granted under the Plan to any
individual that owns (either of record or beneficially) Stock possessing
more than 10% of the combined voting power of the Company or any parent
or subsidiary corporation unless both the exercise price is at least
110% of the fair market value of the Stock on the date the Option is
granted and the Incentive Option by its terms is not exercisable more
than five years after the date it is granted.
(c) Incentive Options may be granted only to employees of the
Company or its subsidiaries and only in connection with that employee's
employment by the Company or the subsidiary. Notwithstanding the above,
directors and other individuals who have contributed to the success of
the Company or its subsidiaries may be granted Incentive Options under
the Plan,
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subject to, and to the extent permitted by, applicable provisions of the
Code and regulations promulgated thereunder, as they may be amended from
time to time.
(d) The aggregate fair market value (determined as of the date
the Incentive Option is granted) of the shares of Stock with respect to
which Incentive Options are exercisable for the first time by any
individual during any calendar year under the Plan (and all other plans
of the Company and its subsidiaries) may not exceed $100,000.
(e) No Incentive Option shall be transferable other than by will
or the laws of descent and distribution and shall be exercisable, during
the lifetime of the optionee, only by the optionee to whom the Incentive
Option is granted.
(f) No individual acquiring shares of Stock pursuant to any
Incentive Option granted under this Plan shall sell, transfer, or
otherwise convey the Stock until after the date that is both two years
after the date the Incentive Option was granted and one year after the
date the Stock was acquired pursuant to the exercise of the Incentive
Option. If any individual makes a disqualifying disposition, he or she
shall notify the Company within 30 days of such transaction.
(g) No Incentive Option may be exercised unless the holder was,
within three months of such exercise, and had been since the date the
Incentive Option was granted, an eligible employee of the Company as
specified in the applicable provisions of the Code, unless the
employment was terminated as a result of the death or disability (as
defined in the Code and the regulations promulgated thereunder as they
may be amended from time to time) of the employee or the employee dies
within three months of the termination. In the event of termination as a
result of disability, the holder shall have a one year period following
termination in which to exercise the Incentive Option. In the event of
death of the holder, the Incentive Option must be exercised within six
months after the issuance of letters testamentary or administration or
the appointment of an administrator, executor, or personal
representative, but not later than one year after the date of
termination of employment. An authorized absence or leave approved by
the Board or a duly authorized committee for a period of 90 days or less
shall not be considered an interruption of employment for any purpose
under the Plan.
(h) All Incentive Options shall be deemed to contain such other
limitations and restrictions as are necessary to conform the Incentive
Option to the requirements for "incentive stock options" as defined in
section 422 of the Code, or any amendment or successor statute of like
tenor.
All of the foregoing restrictions and limitations are based on the governing
provisions of the Code as of the date of adoption of this Plan. If at any time
the Code is amended to permit the qualification of an Option as an incentive
stock option without one or more of the foregoing restrictions or limitations or
the terms of such restrictions or limitations are modified, the Board or a duly
authorized committee may grant Incentive Options, and may modify outstanding
Incentive Options in accordance with such changes, all to the extent that such
action by the Board or duly authorized committee does not disqualify the Options
from treatment as incentive stock options under the provisions of the Code as
may be amended from time to time.
12. Awards to Directors and Officers. To the extent the Company has a
class of securities registered under the Exchange Act, Options or Stock Awards
granted under the Plan to directors and officers (as used in Rule 16b-3
promulgated under the Exchange Act or any amendment or successor rule of like
tenor) intended to qualify for the exemption from section 16(b) of the Exchange
Act provided in
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Rule 16b-3 shall, in addition to being subject to the other restrictions and
limitations set forth in this Plan, be made as follows:
(a) A transaction whereby there is a grant of an Option or Stock
Award pursuant to this Plan must satisfy one of the following:
(i) The transaction must be approved by the Board or duly
authorized committee composed solely of two or more non-employee
directors of the Company (as defined in Rule 16b-3);
(ii) The transaction must be approved or ratified, in
compliance with section 14 of the Exchange Act, by either: the
affirmative vote of the holders of a majority of the securities
of the Company present or represented and entitled to vote at a
meeting of the shareholders of the Company held in accordance
with the applicable laws of the state of incorporation of the
Company; or, if allowed by applicable state law, the written
consent of the holders of a majority, or such greater percentage
as may be required by applicable laws of the state of
incorporation of the Company, of the securities of the Company
entitled to vote. If the transaction is ratified by the
shareholders, such ratification must occur no later than the date
of the next annual meeting of shareholders; or
(iii) The Stock acquired must be held by the officer or
director for a period of six months subsequent to the date of the
grant; provided that if the transaction involves a derivative
security (as defined in section 16 of the Exchange Act), this
condition shall be satisfied if at least six months elapse from
the date of acquisition of the derivative security to the date of
disposition of the derivative security (other than on exercise or
conversion) or its underlying equity security.
(b) Any transaction involving the disposition by the Company of
its securities in connection with Options or Stock Awards granted
pursuant to this Plan shall:
(i) be approved by the Board or duly authorized committee
composed solely of two or more non-employee directors (as defined
in Rule 16b-3); or
(ii) be approved or ratified, in compliance with section
14 of the Exchange Act, by either: the affirmative vote of the
holders of a majority of the securities of the Company present,
or represented, and entitled to vote at a meeting duly held in
accordance with the applicable laws of the state of incorporation
of the Company or, if allowed by applicable state law, the
written consent of the holders of a majority, or such greater
percentage as may be required by applicable laws of the state of
incorporation of the Company, of the securities of the Company
entitled to vote; provided that such ratification occurs no later
than the date of the next annual meeting of shareholders.
All of the foregoing restrictions and limitations are based on the governing
provisions of the Exchange Act and the rules and regulations promulgated
thereunder as of the date of adoption of this Plan. If at any time the governing
provisions are amended to permit an Option to be granted or exercised or Stock
Award to be granted pursuant to Rule 16b-3 or any amendment or successor rule of
like tenor without one or more of the foregoing restrictions or limitations, or
the terms of such restrictions or limitations are modified, the Board or a duly
authorized committee may award Options or Stock Awards to directors and
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officers, and may modify outstanding Options or Stock Awards, in accordance with
such changes, all to the extent that such action by the Board or a duly
authorized committee does not disqualify the Options or Stock Awards from
exemption under the provisions of Rule 16b-3 or any amendment or successor rule
of similar tenor.
13. Stock Appreciation Rights and Other Tandem Rights. The Board or a
duly authorized committee, at the time of granting any award under the terms of
this Plan, shall have the authority to grant stock appreciation rights or other
tandem rights with respect to all or some of the shares of Stock covered by such
award pursuant to which the holder shall have the right to surrender all or part
of such award and thereby exercise the tandem rights; provided, however, that
the holder shall not have such right to surrender and obtain payment during the
first six months of the term of the award, except in the event of death or
disability of the holder during such six-month period. Any payment under the
terms of the tandem rights may be made by the Company, at the discretion of the
Board or a duly authorized committee as set forth in the written award, in Stock
(at its fair market value on the date of the notice of exercise, as determined
by the Board or committee) or in cash, or partly in Stock and partly in cash, as
the Company may determine. Any stock appreciation rights or other tandem rights
granted under the terms of this section may be exercised only when, and only to
the extent that, the holder is entitled to exercise all or a portion of the
underlying award. The terms of any stock appreciation or other rights granted
shall, within the provisions of this Plan, be established by the Board or
committee at the time of grant, and any rights created thereby can only be
transferred in connection with the transfer of the underlying award. Stock
appreciation rights may only be exercised at a time when the fair market value
of the Stock subject to the award exceeds the exercise price of the award.
14. Stock Awards. The Board or a duly authorized committee may grant
Stock Awards to individuals eligible to participate in this Plan, in the amount,
and subject to the provisions determined by the Board or a duly authorized
committee. The Board or a duly authorized committee shall notify in writing each
person selected to receive a Stock Award hereunder as soon as practicable after
he or she has been so selected and shall inform such person of the number of
shares he or she is entitled to receive, the approximate date on which such
shares will be issued, and the Forfeiture Restrictions applicable to such
shares. (For purposes hereof, the term "Forfeiture Restrictions" shall mean any
prohibitions against sale or other transfer of shares of Stock granted under the
Plan and the obligation of the holder to forfeit his or her ownership of or
right to such shares and to surrender such shares to the Company on the
occurrence of certain conditions.) The Board or a duly authorized committee may,
at its discretion, require the payment in cash to the Company by the award
recipient of the par value of the Stock. The shares of Stock issued pursuant to
a Stock Award shall not be sold, exchanged, transferred, pledged, hypothecated,
or otherwise disposed of during such period or periods of time which the Board
or a duly authorized committee shall establish at the time of the grant of the
Stock Award. If a Stock Award is made to an employee of the Company or its
subsidiaries, the employee shall be obligated, for no consideration other than
the amount, if any, of the par value paid in cash for such shares, to forfeit
and surrender such shares as he or shall have received under the Plan which are
then subject to Forfeiture Restrictions to the Company if he or she is no longer
an employee of the Company or its subsidiaries for any reason; provided that, in
the event of termination of the employee's employment by reason of death or
total and permanent disability, the Board or a duly authorized committee, in its
sole discretion, may cancel the Forfeiture Restrictions. Certificates
representing shares subject to Forfeiture Restrictions shall be appropriately
legended as determined by the Board or a duly authorized committee to reflect
the Forfeiture Restrictions, and the Forfeiture Restrictions shall be binding on
any transferee of the shares.
15. Assignment. At the time of grant of an Option or Stock Award, the
Board or a duly authorized Committee, in its sole discretion, may impose
restrictions on the transferability of such Option or Stock Award and provide
that such Option shall not be transferable other than by will or the laws of
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descent and distribution or pursuant to a qualified domestic relations order as
defined in the Code and that, except as permitted by the foregoing, such
Options or Stock Awards, granted under the Plan and the rights and privileges
thereby conferred shall not be transferred, assigned, pledged, or hypothecated
in any way (whether by operation of law or otherwise), and shall not be subject
to execution, attachment, or similar process. On any attempt to transfer,
assign, pledge, hypothecate, or otherwise dispose of the Option or Stock Award,
or of any right or privilege conferred thereby, contrary to the provisions
thereof, or on the levy of any attachment or similar process on such rights and
privileges, the Option or Stock Award and such rights and privileges shall
immediately become null and void.
16. Additional Terms and Provisions of Awards. The Board or duly
authorized committee shall have the right to impose additional limitations on
individual awards under the Plan. For example, and without limiting the
authority of the Board or a duly authorized committee, an individual award may
be conditioned on continued employment for a specified period or may be voided
based on the award holder's gross negligence in the performance of his or her
duties, substantial failure to meet written standards established by the Company
for the performance of his or her duties, criminal misconduct, or willful or
gross misconduct in the performance of his or her duties. In addition, the Board
or a duly authorized committee may establish additional rights in the holders of
individual awards at the time of grant. For example, and without limiting the
authority of the Board or a duly authorized committee, an individual award may
include the right to immediate payment of the value inherent in the award on the
occurrence of certain events such as a change in control of the Company, all on
the terms and conditions set forth in the award at the time of grant. The Board
or a duly authorized committee may, at the time of the grant of the Option or
Stock Award, establish any other terms, restrictions, or provisions on the
exercise of an Option or the holding of Stock subject to the Stock Award as it
deems appropriate. All such terms, restrictions, and provisions must be set
forth in writing at the time of grant in order to be effective.
17. Dilution or Other Adjustment. In the event that the number of shares
of Stock of the Company from time to time issued and outstanding is increased
pursuant to a stock split or a stock dividend, the number of shares of Stock
then covered by each outstanding Option granted hereunder shall be increased
proportionately, with no increase in the total purchase price of the shares then
so covered, and the number of shares of Stock subject to the Plan shall be
increased by the same proportion. Shares awarded under the terms of a Stock
Award shall be entitled to the same rights as other issued and outstanding
shares of Stock, whether or not then subject to Forfeiture Restrictions,
although any additional shares of Stock issued to the holder of a Stock Award
shall be subject to the same Forfeiture Restrictions as the Stock Award. In the
event that the number of shares of Stock of the Company from time to time issued
and outstanding is reduced by a combination or consolidation of shares, the
number of shares of Stock then covered by each outstanding Option granted
hereunder shall be reduced proportionately, with no reduction in the total
purchase price of the shares then so covered, and the number of shares of Stock
subject to the Plan shall be reduced by the same proportion. Shares awarded
under a Stock Award shall be treated as other issued and outstanding shares of
Stock, whether or not then subject to Forfeiture Restrictions. In the event that
the Company should transfer assets to another corporation and distribute the
stock of such other corporation without the surrender of Stock of the Company,
and if such distribution is not taxable as a dividend and no gain or loss is
recognized by reason of section 355 of the Code or any amendment or successor
statute of like tenor, then the total purchase price of the Stock then covered
by each outstanding Option shall be reduced by an amount that bears the same
ratio to the total purchase price then in effect as the market value of the
stock distributed in respect of a share of the Stock of the Company, immediately
following the distribution, bears to the aggregate of the market value at such
time of a share of the Stock of the Company plus the stock distributed in
respect thereof. Shares issued under a Stock Award shall be treated as issued
and outstanding whether or not subject to Forfeiture Restrictions, although any
stock of the other corporation to be distributed with
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respect to the shares awarded under the Stock Award shall be subject to the
Forfeiture Restrictions then applicable to such shares and may be held by the
Company or otherwise subject to restrictions on transfer until the expiration of
the Forfeiture Restrictions. In the event that the Company distributes the stock
of a subsidiary to its shareholders, makes a distribution of a major portion of
its assets, or otherwise distributes significant portion of the value of its
issued and outstanding Stock to its shareholders, the number of shares then
subject to each outstanding Option and the Plan, or the exercise price of each
outstanding Option, may be adjusted in the reasonable discretion of the Board or
a duly authorized committee. Shares awarded under a Stock Award shall be treated
as issued and outstanding, whether or not subject to Forfeiture Restrictions,
although any Stock, assets, or other rights distributed shall be subject to the
Forfeiture Restrictions governing the shares awarded under the Stock Award and,
at the discretion of the Board or a duly authorized committee, may be held by
the Company or otherwise subject to restrictions on transfer by the Company
until the expiration of such Forfeiture Restrictions. All such adjustments shall
be made by the Board or duly authorized committee, whose determination upon the
same, absent demonstrable error, shall be final and binding on all participants
under the Plan. No fractional shares shall be issued, and any fractional shares
resulting from the computations pursuant to this section shall be eliminated
from the respective Option or Stock Award. No adjustment shall be made for cash
dividends, for the issuance of additional shares of Stock for consideration
approved by the Board, or for the issuance to stockholders of rights to
subscribe for additional Stock or other securities.
18. Options or Stock Awards to Foreign Nationals. The Board or a duly
authorized committee may, in order to fulfill the purposes of this Plan and
without amending the Plan, grant Options or Stock Awards to foreign nationals or
individuals residing in foreign countries that contain provisions, restrictions,
and limitations different from those set forth in this Plan and the Options or
Stock Awards made to United States residents in order to recognize differences
among the countries in law, tax policy, and custom. Such grants shall be made in
an attempt to provide such individuals with essentially the same benefits as
contemplated by a grant to United States residents under the terms of this Plan.
19. Listing and Registration of Shares. Unless otherwise expressly
provided on the granting of an award under this Plan, the Company shall have no
obligation to register any securities issued pursuant to this Plan or issuable
on the exercise of Options granted hereunder. Each award shall be subject to the
requirement that if at any time the Board or a duly authorized committee shall
determine, in its sole discretion, that it is necessary or desirable to list,
register, or qualify the shares covered thereby on any securities exchange or
under any state or federal law, or obtain the consent or approval of any
governmental agency or regulatory body as a condition of, or in connection with,
the granting of such award or the issuance or purchase of shares thereunder,
such award may not be made or exercised in whole or in part unless and until
such listing, registration, consent, or approval shall have been effected or
obtained free of any conditions not acceptable to the Board or a duly authorized
committee.
20. Expiration and Termination of the Plan. The Plan may be abandoned or
terminated at any time by the Board or a duly authorized committee except with
respect to any Options or Stock Awards then outstanding under the Plan. The Plan
shall otherwise terminate on the earlier of the date that is: (i) ten years
after the date the Plan is adopted by the Board; or (ii) ten years after the
date the Plan is approved by the shareholders of the Company.
21. Form of Awards. Awards granted under the Plan shall be represented
by a written agreement which shall be executed by the Company and which shall
contain such terms and conditions as may be determined by the Board or a duly
authorized committee and permitted under the terms of this Plan. Option
agreements evidencing Incentive Options shall contain such terms and conditions,
among others, as may be necessary in the opinion of the Board or a duly
authorized committee to qualify them as
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<PAGE> 10
incentive stock options under section 422 of the Code or any amendment or
successor statute of like tenor.
22. No Right of Employment. Nothing contained in this Plan or any Option
or Stock Award shall be construed as conferring on a director, officer, or
employee any right to continue or remain as a director, officer, or employee of
the Company or its subsidiaries.
23. Amendment of the Plan. The Board or a duly authorized committee may
modify and amend the Plan in any respect; provided, however, that to the extent
such amendment or modification would cause the Plan to no longer comply with the
applicable provisions of the Code with respect to Incentive Options, such
amendment or modification shall also be approved by the shareholders of the
Company. Subject to the foregoing and, if the Company is subject to the
provisions of 16(b) of the Exchange Act, the limitations of Rule 16b-3
promulgated under the Exchange Act or any amendment or successor rule of like
tenor, the Plan shall be deemed to be automatically amended as is necessary (i)
with respect to the issuance of Incentive Options, to maintain the Plan in
compliance with the provisions of section 422 of the Code, and regulations
promulgated thereunder from time to time, or any amendment or successor statute
thereto, and (ii) with respect to Options or Stock Awards granted to officers
and directors of the Company, to maintain the awards made under the Plan in
compliance with the provisions of Rule 16b-3 promulgated under the Exchange Act
or any amendment or successor rule of like tenor.
ATTEST:
/s/ Jaye Olafson
--------------------------------------
Jaye Olafson, Secretary
SECRETARY'S CERTIFICATE
The undersigned, the duly constituted and elected secretary of Tomax
technologies, inc., hereby certifies that a duly constituted meeting of the
shareholders held on _____________ , 2000, pursuant to notice and at which a
quorum was present in accordance with the requirements of law and the Company's
articles of incorporation and bylaws, the foregoing 2000 Stock Option and Award
Plan was approved by the affirmative vote of the holders of a majority of the
shares of Common Stock in attendance, in person or by proxy, at such meeting.
DATED this ___ day of _____________, 2000.
/s/ Jaye Olafson
--------------------------------------
Jaye Olafson, Secretary
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<PAGE> 11
TOMAX TECHNOLOGIES, INC.
INCENTIVE STOCK OPTION
(EXECUTIVE OFFICERS)
IT IS IMPORTANT THAT YOU RETAIN THIS DOCUMENT. THIS ORIGINAL
INCENTIVE STOCK OPTION MUST BE DELIVERED TO THE COMPANY ON EXERCISE
OR TRANSFER OF THE OPTION.
THIS INCENTIVE STOCK OPTION (this "Option") is granted effective [Date],
2000, by Tomax technologies, inc., a Utah corporation (the "Company"), under the
terms of the 2000 Stock Option and Award Plan (the "Plan"), to [Name]
("Optionee").
1. Grant of Option. The Company hereby irrevocably grants to Optionee
the right and option to purchase all or any part of an aggregate of
[OptionsSpellout] ([Options]) shares of common stock of the Company, no par
value (the "Common Stock"), on the terms and conditions hereinafter set forth
and subject to the provisions of the Plan.
2. Exercise Price. The exercise price of this Option shall be
$[Price]per share of Common Stock, the fair market value of the Common Stock on
the date of grant as determined by the board of directors.
3. Term of Option. The right to exercise this Option shall vest in
installments commencing on the first day of the month following the effective
date of this Option and on the first day of the succeeding [NoMths] months
thereafter to the extent of [Frac] of the total number of shares of Common Stock
purchasable under this Option, until this Option may be exercisable respecting
the full number of shares set forth in paragraph 1 above. Subject to the
foregoing and the other provisions of this Option and the Plan, this Option may
be exercised, in whole or in part, at any time prior to five years after the
date of this Option.
4. Shareholder's Rights. Optionee shall have the rights of a shareholder
only with respect to shares of Common Stock fully paid for by Optionee under
this Option.
5. Persons Entitled to Exercise. During Optionee's lifetime, this Option
can only be exercised by Optionee, and neither this Option nor any right
hereunder can be transferred other than by testamentary disposition or the laws
of descent and distribution. Neither this Option nor any right hereunder shall
be subject to lien, attachment, execution, or similar process. In the event of
any alienation, assignment, pledge, hypothecation, or other transfer of this
Option or any right hereunder or in the event of any levy, attachment,
execution, or similar process, this Option and all rights granted hereunder
shall be immediately null and void.
6. Qualification as Incentive Stock Option. This Option is intended to
qualify as an "Incentive Stock Option" under the provisions of the Internal
Revenue Code of 1986, as amended (the "Code"). Optionee acknowledges that in
order to be entitled to receive treatment as an Incentive Stock Option, the
holding and exercise of this Option and the Common Stock acquired pursuant to
this Option are subject to certain limitations and restrictions, including a
requirement that any Common Stock acquired hereunder be held by Optionee until
after the date that is both two years subsequent to the date of this Option and
one year subsequent to the date the Common Stock is acquired pursuant to the
exercise of this Option. Failure to hold the shares of Common Stock for the
above period will cause a "disqualifying disposition" of the Common Stock
resulting in the loss of Incentive Stock Option
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<PAGE> 12
treatment and the associated favorable tax benefits. As a result of the
disqualifying disposition the Company will also be subject to certain disclosure
requirements, and, therefore, Optionee agrees to notify the Company, in writing,
30 days prior to any disqualifying disposition.
7. Adjustment to Number of Shares of Common Stock. The number of shares
of Common Stock subject to this Option shall be adjusted to take into account
any stock split, stock dividend, or recapitalization of the Common Stock of the
Company as provided in the Plan.
8. Method of Exercise. This Option may be exercised, in accordance with
all of the terms and conditions set forth in this Option and the Plan, by
delivery of this Option, together with a notice of exercise, a form of which is
attached hereto as Exhibit "A" and incorporated herein by this reference,
indicating the number of shares which Optionee then elects to purchase and
payment made in accordance with the following:
(a) If Optionee elects to exercise the Option and make payment,
in whole or in part, for the shares of Common Stock in cash, Optionee
shall include with the notice of exercise a certified check or official
bank check payable to the order of the Company in the amount of the full
option price of the Common Stock being purchased for cash.
(b) If Optionee elects to exercise the Option and make payment,
in whole or in part, for the shares of Common Stock in installments,
Optionee shall include with the notice of exercise a certified check or
official bank check payable to the order of the Company in the amount of
any cash to be paid on exercise, and a promissory note, in form
satisfactory to the Company, executed by Optionee and evidencing the
obligation of Optionee to pay the balance of the exercise price on terms
and conditions acceptable to the board of directors of the Company at
the time of exercise of the Option.
(c) If Optionee elects to exercise the Option and make payment,
in whole or in part, for the shares of Common Stock by such other method
as approved by the board of directors of the Company at the time of
exercise, Optionee shall deliver to the Company such other forms of
payment approved by the board of directors of the Company.
As soon as practicable after receipt by the Company of such notice and
of payment in full of the option price of all the shares of Common Stock with
respect to which the Option has been exercised (including interest if payment is
made in installments), a certificate or certificates representing such shares of
Common Stock having been paid for shall be issued in the name of Optionee, or,
if Optionee shall so request in the notice exercising the Option, in the name of
Optionee and another person jointly, with right of survivorship, and shall be
delivered to Optionee. To the extent required, pursuant to paragraph 12, all
common stock shall be issued only upon receipt by the Company of Optionee's
representation that the shares are purchased for investment and not with a view
to distribution thereof. If this Option is not exercised with respect to all
Common Stock subject hereto, Optionee shall be entitled to receive a similar
Option of like tenor covering the number of shares of Common Stock with respect
to which this Option shall not have been exercised.
9. Availability of Shares. During the term of this Option, the Company
shall at all times keep reserved for issuance the number of shares of Common
Stock required to satisfy the Option.
10. Limitation on Exercise.
(a) If the board of directors of the Company, in its sole
discretion, shall determine that it is necessary or desirable to list,
register, or qualify the Common Stock under any state or
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<PAGE> 13
federal law, this Option may not be exercised, in whole or part, until
such listing, registration, or qualification shall have been obtained
free of any conditions not acceptable to the board of directors.
(b) The exercise price times the number of shares of Common
Stock first exercisable in any calendar year, together with the fair
market value of the shares of Common Stock subject to any other options
held by Optionee that are first exercisable in such year, shall not
exceed $100,000 (any Options first becoming exercisable in any calendar
year in excess of such amount shall not be treated as incentive stock
options).
(c) This Option shall terminate thirty days after Optionee
ceases to be an eligible employee of the Company as defined in the Code
and the Plan. In addition, no Option granted herein may be exercised
unless Optionee was, within thirty days of such exercise, and has been
since the date the Option was granted, an eligible employee of the
Company as specified in the applicable provisions of the Code, unless
Optionee ceased being an eligible employee as a result of death or
Optionee dies during the thirty-day period subsequent to his ceasing to
be an eligible employee; provided, the Option may be exercised by any
Optionee who ceases employment due to a disability as defined in the
Code, section 22(e)(3), or any amendment to that section or any
successor section of like tenor, within 12 months of such termination.
An authorized absence or leave approved by the board of directors shall
not be considered an interruption of employment for any purpose under
this Option.
(d) In the event that Optionee is terminated at any time for
cause pursuant to any written employment agreement between Optionee and
Optionee's employer or, if there is no such written employment
agreement, on the occurrence of any of the following: (i) Optionee's
conduct involving the business affairs of the employer constituting
common law fraud, conviction of a felony, embezzlement from the employer
or the Company, or other willful or malicious unlawful conduct of a
similar nature; (ii) any material breach by Optionee of the provisions
of the written employment policies or procedures of Optionee's employer
or the Company that are applicable to Optionee; or (iii) Optionee has
been grossly negligent in the performance of his duties or has
substantially failed to meet reasonable standards established by the
Company for the performance of his duties, any and all rights such
individual may have to the unexercised portion of this Option held at
the time of termination shall immediately terminate and be void.
(e) In the event, at any time within (i) the term of this
Option, (ii) three years after termination of Optionee's employment with
the Company, or (iii) three years after exercise of any portion of this
Option by Optionee, whichever is the latest, Optionee engages in any
activity in competition with any activity of the Company, or inimical,
contrary or harmful to the interests of the Company, including, but not
limited to, (1) conduct related to Optionee's employment for which
either criminal or civil penalties against Optionee may be sought, (2)
violation of Company policies, including, without limitation, the
Company's insider trading policy, (3) accepting employment with or
serving as a consultant, advisor or in any other capacity to an employer
that is in competition with or acting against the interests of the
Company, including employing or recruiting any present, former or future
employee of the Company, (4) disclosing or misusing any confidential
information or material concerning the Company, or (5) participating in
a hostile takeover attempt, then this Option shall terminate effective
on the date on which Optionee enters into such activity, unless sooner
terminated by operation of another term or condition of this Option or
the Plan, and any option gain realized by Optionee from exercising all
or a portion of this Option shall be paid by Optionee to the Company.
Optionee consents and agrees to a deduction from any amounts the Company
owes Optionee from time to
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<PAGE> 14
time (including amounts owed to Optionee as wages or other compensation,
fringe benefits, or vacation pay, as well as any other amounts owed to
Optionee by the Company), to the extent of the amounts Optionee owes the
Company hereunder. Whether or not the Company elects to make any set-off
in whole or in part, if the Company does not recover by means of set-off
the full amount Optionee owes the Company, calculated as set forth
herein, Optionee agrees to pay immediately the unpaid balance to the
Company.
(f) In the event the Company is a party to a reorganization or
similar transaction with respect to which "pooling of interest"
treatment (within the meaning of APB 16) is, in the opinion of the
independent certified public accountants of the Company, available for
such transaction, the Company shall have the right, exercisable in its
sole and absolute discretion, to cancel this Option on the day
immediately preceding the effective date of the transaction and in
consideration thereof to pay to the Optionee an amount of cash equal to
the difference between the then fair market value of the Common Stock
that would have been issuable on exercise of the Options so canceled and
the exercise price for the purchase of such shares on exercise. For
purposes hereof, fair market value shall mean the closing price for such
stock as quoted on a registered national securities exchange or, if not
listed on a national exchange, the Nasdaq Stock Market ("Nasdaq"), over
the five-day trading period immediately preceding the date of
determination of fair market value, or, if not listed on such an
exchange or included on Nasdaq, shall mean the closing price (or, if no
closing price is available from sources deemed reliable by the Company,
the closing bid quotation) for such stock on the close of business on
the trading day last preceding the date of determination of fair market
value, or, if no such information is available or deemed reliable by the
Company, the amount determined by the board of directors of the Company
through any other means of determination available.
11. No Right of Employment. Nothing contained in this Option shall be
construed as conferring any right to continue or remain as an officer, director,
or employee of the Company or any subsidiary.
12. Restriction on Transfer. The Option and the shares of Common Stock
subject to this Option (collectively referred to as the "Securities") are
subject to registration under the Securities Act of 1933, as amended (the
"Securities Act"), and any applicable state securities statutes. Optionee
acknowledges that unless a registration statement with respect to the Securities
is filed and declared effective by the Securities and Exchange Commission and
the appropriate state governing agency, the Securities have or will be issued in
reliance on specific exemptions from such registration requirements for
transactions by an issuer not involving a public offering and specific
exemptions under state statutes. Any disposition of the Securities may, under
certain circumstances, be inconsistent with such exemptions. The Securities may
be offered for sale, sold, or otherwise transferred only if (i) registered under
the Securities Act, and in some cases, under the applicable state securities
acts, or, if not registered, (ii) only if such disposition is pursuant to an
exemption from such registration requirements and only after Optionee provides
an opinion of counsel or other evidence satisfactory to the Company to the
effect that registration is not required. In some states, specific conditions
must be met or approval of the securities regulatory authorities may be required
before any such offer or sale. The Company is under no obligation to register
the Securities with the Securities and Exchange Commission or any state agency.
If rule 144 is available (and no assurance is given that it will be), only
routine sales of the Common Stock in limited amounts can be made after one year
following the acquisition date of the
Securities, as determined under rule 144(d), in accordance with the terms and
conditions of rule 144. The Company is under no obligation to make rule 144
available. In the event rule 144 is not available, compliance with regulation A
or some other disclosure exemption may be required before Optionee can sell,
transfer, or otherwise dispose of the Securities without registration. The
Company and its registrar and transfer agent will maintain a stop transfer order
against the transfer of the Securities, and this
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<PAGE> 15
Option and any other certificate or agreement representing the Securities is
subject to the following legend:
THE SECURITIES REPRESENTED BY THIS OPTION AGREEMENT OR CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND ARE "RESTRICTED SECURITIES" WITHIN THE MEANING OF
RULE 144 PROMULGATED UNDER THE SECURITIES ACT. THE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD OR TRANSFERRED WITHOUT
COMPLYING WITH RULE 144 IN THE ABSENCE OF AN EFFECTIVE REGISTRATION OR
OTHER COMPLIANCE UNDER THE SECURITIES ACT.
The Company may refuse to transfer the Securities to any transferee who
does not furnish in writing to the Company the same representations and
warranties set forth in this paragraph and agree to the same conditions with
respect to such Securities as are set forth herein. The Company may further
refuse to transfer the Securities if certain circumstances are present
reasonably indicating that the proposed transferee's representations are not
accurate. In any event, the Company may refuse to consent to any transfer in the
absence of an opinion of legal counsel, satisfactory to and independent of
counsel for the Company, that such proposed transfer is consistent with the
above conditions and applicable securities laws.
13. Registration. The Company shall have no obligation to register the
Common Stock issuable on exercise of this Option. If no registration statement
is effective on the date of exercise of this Option, the shares of Common Stock
will not be issued unless and until there is available to the Company evidence,
including representations from Optionee, that such shares are being acquired for
investment and not for resale, on which the Company may reasonably rely as to
the availability of an exemption from registration in issuing such Common Stock.
14. No Right to Information. Optionee acknowledges and agrees that
neither the Company, its shareholders, nor its directors and officers, has any
duty or obligation to disclose to Optionee any material information regarding
the business of the Company or affecting the value of the Options or Common
Stock before or at the time of termination of the employment of Optionee by the
Company including, without limitation, any information concerning plans for the
Company to make a public offering of its securities or to be acquired by or
merged with or into another firm or entity.
15. Other Limitations and Restrictions. All Options granted hereunder
shall be deemed to contain such other limitations and restrictions as are
necessary to conform the Option to the requirements for "Incentive Stock
Options" as defined in section 422 of the Code, or any amendment or successor
statute of like tenor.
16. Payment in the Event of a Change in Control. In the event of a
"Change in Control" (as defined), the Option as to all of the shares granted
herein shall immediately become exercisable and the Company shall pay promptly
to Optionee an amount equal to the number of Optionee's unexercised Options,
whether or not vested (but excluding any Options previously exercised,
terminated, canceled, or expired), times the amount by which the "Fair Market
Value" (as defined) exceeds the exercise price of such Options. For purposes
hereof:
(a) "Change in Control" shall be deemed to have occurred if (i)
the Company shall be merged or consolidated into another corporation and
as a result of such merger or consolidation less than seventy-five
percent (75%) of the outstanding voting securities of the surviving or
resulting corporation shall be owned in the aggregate by the former
shareholders of
-5-
<PAGE> 16
the Company as the same shall have existed prior to such merger or
consolidation, (ii) the Company shall sell, lease, exchange, or
otherwise transfer (in one transaction or a series of transactions) all
or substantially all of the assets of the Company to an entity that is
not a wholly owned subsidiary of the Company or a group of associated
purchasers, (iii) a person, within the meaning of Section 3(a)(9) or
Section 13(d)(3) (as in effect on the date hereof) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), shall become the
beneficial owner (within the meaning of rule 13d-3 of the Exchange Act
as in effect on the date hereof) of fifty percent (50%) or more of the
outstanding voting securities of the Company, or (iv) if as a result of
a merger, consolidation, sale of all or substantially all of the
Company's assets, a contested election, or any combination of the
foregoing, the persons who were directors of the Company immediately
prior thereto shall cease to constitute a majority of the board of
directors of the Company or any successor to the Company.
(b) "Fair Market Value" shall be the closing price for such
stock on the close of business on the day last preceding the occurrence
of the Change of Control as quoted on a registered national securities
exchange or, if not listed on such an exchange, the Nasdaq Stock Market
or, if not listed on such an exchange or included on the Nasdaq Stock
Market, the closing price (or, if no closing price is available from
sources deemed reliable by the Company, the closing bid quotation) for
such stock as determined by the Company through any other reliable means
of determination available on the close of business on the day last
preceding the date of such Change of Control.
17. Withholding. The Company may, in its sole discretion, satisfy any
obligation to withhold income and employment taxes resulting from the grant or
exercise of this Option (or any other event giving rise to such obligation) in
any of the following ways:
(a) The Company may require Optionee to deliver to the Company
at the time of exercise of this Option an amount of cash equal to such
withholding obligation.
(b) If authorized by the action of the board of directors of the
Company (or a duly appointed committee of the board) upon request by
Optionee, the Company may defer payment of the withholding obligation
for a reasonable period to allow Optionee an opportunity to sell shares
of Common Stock issuable on the exercise of this Option. In the event of
such deferral, the receipt by Optionee of shares of Common Stock on
exercise of this Option shall constitute a grant to the Company by
Optionee of a continuing security interest in such shares of Common
Stock and all proceeds thereof and the appointment of the President of
the Company, and any successor thereto, as attorney-in-fact to sell the
number of shares and collect the proceeds therefrom as may be necessary,
in the opinion of the Company, to satisfy all obligations for the
payment of such taxes.
(c) The Company may withhold from any compensation or other
amount owing to Optionee the amount (in cash, Common Stock, or other
property as the Company may determine) of the withholding obligation.
(d) If authorized by the action of the board of directors of the
Company (or a duly appointed committee of the board) upon request by
Optionee, the Company may withhold a number of shares of Common Stock
otherwise deliverable upon exercise of this Option having a value,
determined in accordance with the provisions of this Option, equivalent
to the amount of such withholding obligation.
-6-
<PAGE> 17
In all events, delivery of shares of Common Stock issuable on exercise of this
Option shall be conditioned upon and subject to the satisfaction or making
provision for the satisfaction of the withholding obligation of the Company
resulting from the exercise of this Option. The Company is hereby further
authorized to take such other action as may be necessary, in the opinion of the
Company, to satisfy all obligations for the payment of such taxes. To the extent
that the holder of this Option is subject to the provisions of section 16(b) of
the Exchange Act, payment of the withholding and other trust fund requirements
of the foregoing methods shall be subject to the transaction qualifying for an
exemption from the provisions of section 16(b) under rule 16b-3 promulgated
pursuant to the Exchange Act or an amendment or successor rule of like tenor.
18. Validity and Construction. The validity and construction of this
Option shall be governed by the laws of the state of Utah.
19. Notice of Disposition. Optionee shall give notice in writing to the
Company of any disposition or transfer of this Option, whether by gift, sale,
exchange, or otherwise.
EXECUTED as of the date first above written.
The Company:
Tomax technologies, inc.
By:
-------------------------------
Duly Authorized Officer
Attest:
----------------------------
Jaye Olafson, Secretary
Accepted and Agreed:
----------------------------
Optionee
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<PAGE> 18
EXHIBIT "A"
FORM OF EXERCISE
(TO BE SIGNED ONLY UPON EXERCISE OF OPTION)
TO: Tomax technologies, inc.
The undersigned, the owner of the attached Option, hereby irrevocable
elects to exercise the purchase rights represented by the Option for, and to
purchase thereunder, ____________ shares of Common Stock of Tomax technologies,
inc. Enclosed is payment in the amount of $____________, the exercise price of
the Common Stock to be acquired. Please have the certificate(s) registered in
the name of _______________________________, social security number
____________________, and delivered to the following address:
__________________________________. If this exercise does not include all of the
Common Stock covered by the attached Option, please deliver a new option of like
tenor for the balance of the Common Stock to the undersigned at the foregoing
address.
DATED this ____ day of ______________, 20____.
-------------------------------------------------
Signature (Signature must be guaranteed by a bank
or a registered broker-dealer)
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<PAGE> 19
TOMAX TECHNOLOGIES, INC.
INCENTIVE STOCK OPTION
IT IS IMPORTANT THAT YOU RETAIN THIS DOCUMENT. THIS ORIGINAL INCENTIVE
STOCK OPTION MUST BE DELIVERED TO THE COMPANY ON EXERCISE OR TRANSFER OF
THE OPTION.
THIS INCENTIVE STOCK OPTION (this "Option") is granted effective this
(DATE), by Tomax technologies, inc., a Utah corporation (the "Company"), under
the terms of the 2000 Stock Option and Award Plan (the "Plan"), to (NAME)
("Optionee").
1. Grant of Option. The Company hereby irrevocably grants to Optionee
the right and option to purchase all or any part of an aggregate of (NUMBER)
shares of common stock of the Company, no par value (the "Common Stock"), on the
terms and conditions hereinafter set forth and subject to the provisions of the
Plan.
2. Exercise Price. The exercise price of this Option shall be (PRICE)
per share of Common Stock, the fair market value of the Common Stock on the date
of grant as determined by the board of directors.
3. Term of Option. The right to exercise this Option shall vest in
installments commencing on the first day of the month following the effective
date of this Option and on the first day of the succeeding 23 months thereafter
to the extent of 1/24th of the total number of shares of Common Stock
purchasable under this Option, until this Option may be exercisable respecting
the full number of shares set forth in paragraph 1 above. Subject to the
foregoing and the other provisions of this Option and the Plan, this Option may
be exercised, in whole or in part, at any time prior to five years after the
date of this Option.
4. Shareholder's Rights. Optionee shall have the rights of a shareholder
only with respect to shares of Common Stock fully paid for by Optionee under
this Option.
5. Persons Entitled to Exercise. During Optionee's lifetime, this Option
can only be exercised by Optionee, and neither this Option nor any right
hereunder can be transferred other than by testamentary disposition or the laws
of descent and distribution. Neither this Option nor any right hereunder shall
be subject to lien, attachment, execution, or similar process. In the event of
any alienation, assignment, pledge, hypothecation, or other transfer of this
Option or any right hereunder or in the event of any levy, attachment,
execution, or similar process, this Option and all rights granted hereunder
shall be immediately null and void.
6. Qualification as Incentive Stock Option. This Option is intended to
qualify as an "Incentive Stock Option" under the provisions of the Internal
Revenue Code of 1986, as amended (the "Code"). Optionee acknowledges that in
order to be entitled to receive treatment as an Incentive Stock Option, the
holding and exercise of this Option and the Common Stock acquired pursuant to
this Option are subject to certain limitations and restrictions, including a
requirement that any Common Stock acquired hereunder be held by Optionee until
after the date that is both two years subsequent to the date of this Option and
one year subsequent to the date the Common Stock is acquired pursuant to the
exercise of this Option. Failure to hold the shares of Common Stock for the
above period will cause a "disqualifying disposition" of the Common Stock
resulting in the loss of Incentive Stock Option treatment and the associated
favorable tax benefits. As a result of the disqualifying disposition the Company
will also be subject to certain disclosure requirements, and, therefore,
Optionee agrees to notify the Company, in writing, 30 days prior to any
disqualifying disposition.
-1-
<PAGE> 20
7. Adjustment to Number of Shares of Common Stock. The number of shares
of Common Stock subject to this Option shall be adjusted to take into account
any stock split, stock dividend, or recapitalization of the Common Stock of the
Company as provided in the Plan.
8. Method of Exercise. This Option may be exercised, in accordance with
all of the terms and conditions set forth in this Option and the Plan, by
delivery of this Option, together with a notice of exercise, a form of which is
attached hereto as Exhibit "A" and incorporated herein by this reference,
indicating the number of shares which Optionee then elects to purchase and
payment made in accordance with the following:
(a) If Optionee elects to exercise the Option and make payment,
in whole or in part, for the shares of Common Stock in cash, Optionee
shall include with the notice of exercise a certified check or official
bank check payable to the order of the Company in the amount of the full
option price of the Common Stock being purchased for cash.
(b) If Optionee elects to exercise the Option and make payment,
in whole or in part, for the shares of Common Stock in installments,
Optionee shall include with the notice of exercise a certified check or
official bank check payable to the order of the Company in the amount of
any cash to be paid on exercise, and a promissory note, in form
satisfactory to the Company, executed by Optionee and evidencing the
obligation of Optionee to pay the balance of the exercise price on terms
and conditions acceptable to the board of directors of the Company at
the time of exercise of the Option.
(c) If Optionee elects to exercise the Option and make payment,
in whole or in part, for the shares of Common Stock by such other method
as approved by the board of directors of the Company at the time of
exercise, Optionee shall deliver to the Company such other forms of
payment approved by the board of directors of the Company.
As soon as practicable after receipt by the Company of such notice and
of payment in full of the option price of all the shares of Common Stock with
respect to which the Option has been exercised (including interest if payment is
made in installments), a certificate or certificates representing such shares of
Common Stock having been paid for shall be issued in the name of Optionee, or,
if Optionee shall so request in the notice exercising the Option, in the name of
Optionee and another person jointly, with right of survivorship, and shall be
delivered to Optionee. To the extent required, pursuant to paragraph 12, all
common stock shall be issued only upon receipt by the Company of Optionee's
representation that the shares are purchased for investment and not with a view
to distribution thereof. If this Option is not exercised with respect to all
Common Stock subject hereto, Optionee shall be entitled to receive a similar
Option of like tenor covering the number of shares of Common Stock with respect
to which this Option shall not have been exercised.
9. Availability of Shares. During the term of this Option, the Company
shall at all times keep reserved for issuance the number of shares of Common
Stock required to satisfy the Option.
10. Limitation on Exercise.
(a) If the board of directors of the Company, in its sole
discretion, shall determine that it is necessary or desirable to list,
register, or qualify the Common Stock under any state or federal law,
this Option may not be exercised, in whole or part, until such listing,
registration, or qualification shall have been obtained free of any
conditions not acceptable to the board of directors.
(b) The exercise price times the number of shares of Common
Stock first exercisable in any calendar year, together with the fair
market value of the shares of Common Stock subject to any other options
held by Optionee that are first exercisable in such year, shall
-2-
<PAGE> 21
not exceed $100,000 (any Options first becoming exercisable in any
calendar year in excess of such amount shall not be treated as incentive
stock options).
(c) This Option shall terminate thirty days after Optionee ceases
to be an eligible employee of the Company as defined in the Code and the
Plan. In addition, no Option granted herein may be exercised unless
Optionee was, within thirty days of such exercise, and has been since
the date the Option was granted, an eligible employee of the Company as
specified in the applicable provisions of the Code, unless Optionee
ceased being an eligible employee as a result of death or Optionee dies
during the thirty-day period subsequent to his ceasing to be an eligible
employee; provided, the Option may be exercised by any Optionee who
ceases employment due to a disability as defined in the Code, section
22(e)(3), or any amendment to that section or any successor section of
like tenor, within 12 months of such termination. An authorized absence
or leave approved by the board of directors shall not be considered an
interruption of employment for any purpose under this Option.
(d) In the event that Optionee is terminated at any time for
cause pursuant to any written employment agreement between Optionee and
Optionee's employer or, if there is no such written employment
agreement, on the occurrence of any of the following: (i) Optionee's
conduct involving the business affairs of the employer constituting
common law fraud, conviction of a felony, embezzlement from the employer
or the Company, or other willful or malicious unlawful conduct of a
similar nature; (ii) any material breach by Optionee of the provisions
of the written employment policies or procedures of Optionee's employer
or the Company that are applicable to Optionee; or (iii) Optionee has
been grossly negligent in the performance of his duties or has
substantially failed to meet reasonable standards established by the
Company for the performance of his duties, any and all rights such
individual may have to the unexercised portion of this Option held at
the time of termination shall immediately terminate and be void.
(e) In the event, at any time within (i) the term of this Option,
(ii) three years after termination of Optionee's employment with the
Company, or (iii) three years after exercise of any portion of this
Option by Optionee, whichever is the latest, Optionee engages in any
activity in competition with any activity of the Company, or inimical,
contrary or harmful to the interests of the Company, including, but not
limited to, (1) conduct related to Optionee's employment for which
either criminal or civil penalties against Optionee may be sought, (2)
violation of Company policies, including, without limitation, the
Company's insider trading policy, (3) accepting employment with or
serving as a consultant, advisor or in any other capacity to an employer
that is in competition with or acting against the interests of the
Company, including employing or recruiting any present, former or future
employee of the Company, (4) disclosing or misusing any confidential
information or material concerning the Company, or (5) participating in
a hostile takeover attempt, then this Option shall terminate effective
on the date on which Optionee enters into such activity, unless sooner
terminated by operation of another term or condition of this Option or
the Plan, and any option gain realized by Optionee from exercising all
or a portion of this Option shall be paid by Optionee to the Company.
Optionee consents and agrees to a deduction from any amounts the Company
owes Optionee from time to time (including amounts owed to Optionee as
wages or other compensation, fringe benefits, or vacation pay, as well
as any other amounts owed to Optionee by the Company), to the extent of
the amounts Optionee owes the Company hereunder. Whether or not the
Company elects to make any set-off in whole or in part, if the Company
does not recover by means of set-off the full amount Optionee owes the
Company, calculated as set forth herein, Optionee agrees to pay
immediately the unpaid balance to the Company.
(f) In the event the Company is a party to a reorganization or
similar transaction with respect to which "pooling of interest"
treatment (within the meaning of APB 16) is, in the opinion of the
independent certified public accountants of the Company, available for
such
-3-
<PAGE> 22
transaction, the Company shall have the right, exercisable in its sole
and absolute discretion, to cancel this Option on the day immediately
preceding the effective date of the transaction and in consideration
thereof to pay to the Optionee an amount of cash equal to the difference
between the then fair market value of the Common Stock that would have
been issuable on exercise of the Options so canceled and the exercise
price for the purchase of such shares on exercise. For purposes hereof,
fair market value shall mean the closing price for such stock as quoted
on a registered national securities exchange or, if not listed on a
national exchange, the Nasdaq Stock Market ("Nasdaq"), over the five-day
trading period immediately preceding the date of determination of fair
market value, or, if not listed on such an exchange or included on
Nasdaq, shall mean the closing price (or, if no closing price is
available from sources deemed reliable by the Company, the closing bid
quotation) for such stock on the close of business on the trading day
last preceding the date of determination of fair market value, or, if no
such information is available or deemed reliable by the Company, the
amount determined by the board of directors of the Company through any
other means of determination available.
11. No Right of Employment. Nothing contained in this Option shall be
construed as conferring any right to continue or remain as an officer, director,
or employee of the Company or any subsidiary.
12. Restriction on Transfer. The Option and the shares of Common Stock
subject to this Option (collectively referred to as the "Securities") are
subject to registration under the Securities Act of 1933, as amended (the
"Securities Act"), and any applicable state securities statutes. Optionee
acknowledges that unless a registration statement with respect to the Securities
is filed and declared effective by the Securities and Exchange Commission and
the appropriate state governing agency, the Securities have or will be issued in
reliance on specific exemptions from such registration requirements for
transactions by an issuer not involving a public offering and specific
exemptions under state statutes. Any disposition of the Securities may, under
certain circumstances, be inconsistent with such exemptions. The Securities may
be offered for sale, sold, or otherwise transferred only if (i) registered under
the Securities Act, and in some cases, under the applicable state securities
acts, or, if not registered, (ii) only if such disposition is pursuant to an
exemption from such registration requirements and only after Optionee provides
an opinion of counsel or other evidence satisfactory to the Company to the
effect that registration is not required. In some states, specific conditions
must be met or approval of the securities regulatory authorities may be required
before any such offer or sale. The Company is under no obligation to register
the Securities with the Securities and Exchange Commission or any state agency.
If rule 144 is available (and no assurance is given that it will be), only
routine sales of the Common Stock in limited amounts can be made after one year
following the acquisition date of the Securities, as determined under rule
144(d), in accordance with the terms and conditions of rule 144. The Company is
under no obligation to make rule 144 available. In the event rule 144 is not
available, compliance with regulation A or some other disclosure exemption may
be required before Optionee can sell, transfer, or otherwise dispose of the
Securities without registration. The Company and its registrar and transfer
agent will maintain a stop transfer order against the transfer of the
Securities, and this Option and any other certificate or agreement representing
the Securities is subject to the following legend:
THE SECURITIES REPRESENTED BY THIS OPTION AGREEMENT OR CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND ARE "RESTRICTED SECURITIES" WITHIN THE MEANING OF
RULE 144 PROMULGATED UNDER THE SECURITIES ACT. THE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD OR TRANSFERRED WITHOUT
COMPLYING WITH RULE 144 IN THE ABSENCE OF AN EFFECTIVE REGISTRATION OR
OTHER COMPLIANCE UNDER THE SECURITIES ACT.
-4-
<PAGE> 23
The Company may refuse to transfer the Securities to any transferee who
does not furnish in writing to the Company the same representations and
warranties set forth in this paragraph and agree to the same conditions with
respect to such Securities as are set forth herein. The Company may further
refuse to transfer the Securities if certain circumstances are present
reasonably indicating that the proposed transferee's representations are not
accurate. In any event, the Company may refuse to consent to any transfer in the
absence of an opinion of legal counsel, satisfactory to and independent of
counsel for the Company, that such proposed transfer is consistent with the
above conditions and applicable securities laws.
13. Registration. The Company shall have no obligation to register the
Common Stock issuable on exercise of this Option. If no registration statement
is effective on the date of exercise of this Option, the shares of Common Stock
will not be issued unless and until there is available to the Company evidence,
including representations from Optionee, that such shares are being acquired for
investment and not for resale, on which the Company may reasonably rely as to
the availability of an exemption from registration in issuing such Common Stock.
14. No Right to Information. Optionee acknowledges and agrees that
neither the Company, its shareholders, nor its directors and officers, has any
duty or obligation to disclose to Optionee any material information regarding
the business of the Company or affecting the value of the Options or Common
Stock before or at the time of termination of the employment of Optionee by the
Company including, without limitation, any information concerning plans for the
Company to make a public offering of its securities or to be acquired by or
merged with or into another firm or entity.
15. Other Limitations and Restrictions. All Options granted hereunder
shall be deemed to contain such other limitations and restrictions as are
necessary to conform the Option to the requirements for "Incentive Stock
Options" as defined in section 422 of the Code, or any amendment or successor
statute of like tenor.
16. Withholding. The Company may, in its sole discretion, satisfy any
obligation to withhold income and employment taxes resulting from the grant or
exercise of this Option (or any other event giving rise to such obligation) in
any of the following ways:
(a) The Company may require Optionee to deliver to the Company
at the time of exercise of this Option an amount of cash equal to such
withholding obligation.
(b) If authorized by the action of the board of directors of the
Company (or a duly appointed committee of the board) upon request by
Optionee, the Company may defer payment of the withholding obligation
for a reasonable period to allow Optionee an opportunity to sell shares
of Common Stock issuable on the exercise of this Option. In the event of
such deferral, the receipt by Optionee of shares of Common Stock on
exercise of this Option shall constitute a grant to the Company by
Optionee of a continuing security interest in such shares of Common
Stock and all proceeds thereof and the appointment of the President of
the Company, and any successor thereto, as attorney-in-fact to sell the
number of shares and collect the proceeds therefrom as may be necessary,
in the opinion of the Company, to satisfy all obligations for the
payment of such taxes.
(c) The Company may withhold from any compensation or other
amount owing to Optionee the amount (in cash, Common Stock, or other
property as the Company may determine) of the withholding obligation.
(d) If authorized by the action of the board of directors of the
Company (or a duly appointed committee of the board) upon request by
Optionee, the Company may withhold a number of shares of Common Stock
otherwise deliverable upon exercise of this Option having a
-5-
<PAGE> 24
value, determined in accordance with the provisions of this Option,
equivalent to the amount of such withholding obligation.
In all events, delivery of shares of Common Stock issuable on exercise of this
Option shall be conditioned upon and subject to the satisfaction or making
provision for the satisfaction of the withholding obligation of the Company
resulting from the exercise of this Option. The Company is hereby further
authorized to take such other action as may be necessary, in the opinion of the
Company, to satisfy all obligations for the payment of such taxes. To the extent
that the holder of this Option is subject to the provisions of section 16(b) of
the Exchange Act, payment of the withholding and other trust fund requirements
of the foregoing methods shall be subject to the transaction qualifying for an
exemption from the provisions of section 16(b) under rule 16b-3 promulgated
pursuant to the Exchange Act or an amendment or successor rule of like tenor.
17. Validity and Construction. The validity and construction of this
Option shall be governed by the laws of the state of Utah.
18. Notice of Disposition. Optionee shall give notice in writing to the
Company of any disposition or transfer of this Option, whether by gift, sale,
exchange, or otherwise.
EXECUTED as of the date first above written.
The Company:
Tomax technologies, inc.
By:
----------------------------------
Duly Authorized Officer
Attest:
----------------------------
Jaye Olafson, Secretary
Accepted and Agreed:
----------------------------
Optionee
-6-
<PAGE> 25
EXHIBIT "A"
FORM OF EXERCISE
(TO BE SIGNED ONLY UPON EXERCISE OF OPTION)
TO: Tomax technologies, inc.
The undersigned, the owner of the attached Option, hereby irrevocable
elects to exercise the purchase rights represented by the Option for, and to
purchase thereunder, ____________ shares of Common Stock of Tomax technologies,
inc. Enclosed is payment in the amount of $____________, the exercise price of
the Common Stock to be acquired. Please have the certificate(s) registered in
the name of _______________________________, social security number
____________________, and delivered to the following address:
__________________________________. If this exercise does not include all of the
Common Stock covered by the attached Option, please deliver a new option of like
tenor for the balance of the Common Stock to the undersigned at the foregoing
address.
DATED this ____ day of ______________, 20____.
-------------------------------------------------
Signature (Signature must be guaranteed by a bank
or a registered broker-dealer)
-1-
<PAGE> 26
TOMAX TECHNOLOGIES, INC.
NON-QUALIFIED STOCK OPTION
IT IS IMPORTANT THAT YOU RETAIN THIS DOCUMENT. THIS ORIGINAL
NON-QUALIFIED STOCK OPTION MUST BE DELIVERED TO THE COMPANY ON EXERCISE
OR TRANSFER OF THE OPTION.
THIS NON-QUALIFIED STOCK OPTION (this "Option") is granted effective
(DATE), by Tomax technologies, inc., a Utah corporation (the "Company"), under
the terms of the 2000 Stock Option and Award Plan (the "Plan"), to (NAME)
("Optionee").
1. Grant of Option. The Company hereby irrevocably grants to Optionee
the right and option to purchase all or any part of an aggregate of (NUMBER)
shares of common stock of the Company, no par value (the "Common Stock"), on the
terms and conditions hereinafter set forth and subject to the provisions of the
Plan.
2. Exercise Price. The exercise price of this Option shall be (PRICE)
per share of Common Stock, the fair market value of the Common Stock on the date
of grant as determined by the board of directors.
3. Term of Option. The right to exercise this Option shall be fully
vested as of the date of this Option respecting the full number of shares set
forth in paragraph 1 above. Subject to the foregoing and the other provisions of
this Option and the Plan, this Option may be exercised, in whole or in part, at
any time prior to five years after the date of this Option.
4. Shareholder's Rights. Optionee shall have the rights of a shareholder
only with respect to shares of Common Stock fully paid for by Optionee under
this Option.
5. Persons Entitled to Exercise. During Optionee's lifetime, unless
expressly waived by the Company, this Option can only be exercised by Optionee,
and neither this Option nor any right hereunder can be transferred other than by
testamentary disposition or the laws of descent and distribution. Neither this
Option nor any right hereunder shall be subject to lien, attachment, execution,
or similar process. In the event of any alienation, assignment, pledge,
hypothecation, or other transfer of this Option or any right hereunder or in the
event of any levy, attachment, execution, or similar process, other than as
provided herein, this Option and all rights granted hereunder shall be
immediately null and void.
6. Adjustment to Number of Shares of Common Stock. The number of shares
of Common Stock subject to this Option shall be adjusted to take into account
any stock split, stock dividend, or recapitalization of the Common Stock of the
Company as provided in the Plan.
7. Method of Exercise. This Option may be exercised, in accordance with
all of the terms and conditions set forth in this Option and the Plan, by
delivery of this Option, together with a notice of exercise, a form of which is
attached hereto as Exhibit "A" and incorporated herein by this reference,
indicating the number of shares which Optionee then elects to purchase and
payment made in accordance with the following:
(a) If Optionee elects to exercise the Option and make payment,
in whole or in part, for the shares of Common Stock in cash, Optionee
shall include with the notice of exercise a certified check or official
bank check payable to the order of the Company in the amount of the full
option price of the Common Stock being purchased for cash.
-1-
<PAGE> 27
(b) If Optionee elects to exercise the Option and make payment,
in whole or in part, for the shares of Common Stock in installments,
Optionee shall include with the notice of exercise a certified check or
official bank check payable to the order of the Company in the amount of
any cash to be paid on exercise, and a promissory note, in form
satisfactory to the Company, executed by Optionee and evidencing the
obligation of Optionee to pay the balance of the exercise price on terms
and conditions acceptable to the board of directors of the Company at
the time of exercise of the Option.
(c) If Optionee elects to exercise the Option and make payment,
in whole or in part, for the shares of Common Stock by such other method
as approved by the board of directors of the Company at the time of
exercise, Optionee shall deliver to the Company such other forms of
payment approved by the board of directors of the Company.
As soon as practicable after receipt by the Company of such notice and
of payment in full of the option price of all the shares of Common Stock with
respect to which the Option has been exercised (including interest if payment is
made in installments), a certificate or certificates representing such shares of
Common Stock having been paid for shall be issued in the name of Optionee, or,
if Optionee shall so request in the notice exercising the Option, in the name of
Optionee and another person jointly, with right of survivorship, and shall be
delivered to Optionee. To the extent required, pursuant to paragraph 12, all
common stock shall be issued only upon receipt by the Company of Optionee's
representation that the shares are purchased for investment and not with a view
to distribution thereof. If this Option is not exercised with respect to all
Common Stock subject hereto, Optionee shall be entitled to receive a similar
Option of like tenor covering the number of shares of Common Stock with respect
to which this Option shall not have been exercised.
8. Availability of Shares. During the term of this Option, the Company
shall at all times keep reserved for issuance the number of shares of Common
Stock required to satisfy the Option.
9. Limitation on Exercise.
(a) If the board of directors of the Company, in its sole
discretion, shall determine that it is necessary or desirable to list,
register, or qualify the Common Stock under any state or federal law,
this Option may not be exercised, in whole or part, until such listing,
registration, or qualification shall have been obtained free of any
conditions not acceptable to the board of directors.
(b) In the event, at any time within (i) the term of this
Option, (ii) three years after termination of Optionee's employment with
the Company, or (iii) three years after exercise of any portion of this
Option by Optionee, whichever is the latest, Optionee engages in any
activity in competition with any activity of the Company, or inimical,
contrary or harmful to the interests of the Company, including, but not
limited to, (1) accepting employment with or serving as a consultant,
advisor or in any other capacity to an employer that is in competition
with or acting against the interests of the Company, including employing
or recruiting any present, former or future employee of the Company, (2)
disclosing or misusing any confidential information or material
concerning the Company, or (3) participating in a hostile takeover
attempt, then this Option shall terminate effective on the date on which
Optionee enters into such activity, unless sooner terminated by
operation of another term or condition of this Option or the Plan, and
any option gain realized by Optionee from exercising all or a portion of
this Option shall be paid by Optionee to the Company. Optionee consents
and agrees to a deduction from any amounts the Company owes Optionee
from time to time (including amounts owed to Optionee as wages or other
compensation, fringe benefits, or vacation pay, as well as any other
amounts owed to
-2-
<PAGE> 28
Optionee by the Company), to the extent of the amounts Optionee owes the
Company hereunder. Whether or not the Company elects to make any set-off
in whole or in part, if the Company does not recover by means of set-off
the full amount Optionee owes the Company, calculated as set forth
herein, Optionee agrees to pay immediately the unpaid balance to the
Company.
(c) In the event the Company is a party to a reorganization or
similar transaction with respect to which "pooling of interest"
treatment (within the meaning of APB 16) is, in the opinion of the
independent certified public accountants of the Company, available for
such transaction, the Company shall have the right, exercisable in its
sole and absolute discretion, to cancel this Option on the day
immediately preceding the effective date of the transaction and in
consideration thereof to pay to the Optionee an amount of cash equal to
the difference between the then fair market value of the Common Stock
that would have been issuable on exercise of the Options so canceled and
the exercise price for the purchase of such shares on exercise. For
purposes hereof, fair market value shall mean the closing price for such
stock as quoted on a registered national securities exchange or, if not
listed on a national exchange, the Nasdaq Stock Market ("Nasdaq"), over
the five-day trading period immediately preceding the date of
determination of fair market value, or, if not listed on such an
exchange or included on Nasdaq, shall mean the closing price (or, if no
closing price is available from sources deemed reliable by the Company,
the closing bid quotation) for such stock on the close of business on
the trading day last preceding the date of determination of fair market
value, or, if no such information is available or deemed reliable by the
Company, the amount determined by the board of directors of the Company
through any other means of determination available.
10. No Right of Employment. Nothing contained in this Option shall be
construed as conferring any right to continue or remain as an officer, director,
or employee of the Company or any subsidiary.
11. Restriction on Transfer. The Option and the shares of Common Stock
subject to this Option (collectively referred to as the "Securities") are
subject to registration under the Securities Act of 1933, as amended (the
"Securities Act"), and any applicable state securities statutes. Optionee
acknowledges that unless a registration statement with respect to the Securities
is filed and declared effective by the Securities and Exchange Commission and
the appropriate state governing agency, the Securities have or will be issued in
reliance on specific exemptions from such registration requirements for
transactions by an issuer not involving a public offering and specific
exemptions under state statutes. Any disposition of the Securities may, under
certain circumstances, be inconsistent with such exemptions. The Securities may
be offered for sale, sold, or otherwise transferred only if (i) registered under
the Securities Act, and in some cases, under the applicable state securities
acts, or, if not registered, (ii) only if such disposition is pursuant to an
exemption from such registration requirements and only after Optionee provides
an opinion of counsel or other evidence satisfactory to the Company to the
effect that registration is not required. In some states, specific conditions
must be met or approval of the securities regulatory authorities may be required
before any such offer or sale. The Company is under no obligation to register
the Securities with the Securities and Exchange Commission or any state agency.
If rule 144 is available (and no assurance is given that it will be), only
routine sales of the Common Stock in limited amounts can be made after one year
following the acquisition date of the Securities, as determined under rule
144(d), in accordance with the terms and conditions of rule 144. The Company is
under no obligation to make rule 144 available. In the event rule 144 is not
available, compliance with regulation A or some other disclosure exemption may
be required before Optionee can sell, transfer, or otherwise dispose of the
Securities without registration. The Company and its registrar and transfer
agent will maintain a stop transfer order against the transfer of the
Securities, and this Option and any other certificate or agreement representing
the Securities is subject to the following legend:
-3-
<PAGE> 29
THE SECURITIES REPRESENTED BY THIS OPTION AGREEMENT OR CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND ARE "RESTRICTED SECURITIES" WITHIN THE MEANING OF
RULE 144 PROMULGATED UNDER THE SECURITIES ACT. THE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD OR TRANSFERRED WITHOUT
COMPLYING WITH RULE 144 IN THE ABSENCE OF AN EFFECTIVE REGISTRATION OR
OTHER COMPLIANCE UNDER THE SECURITIES ACT.
The Company may refuse to transfer the Securities to any transferee who
does not furnish in writing to the Company the same representations and
warranties set forth in this paragraph and agree to the same conditions with
respect to such Securities as are set forth herein. The Company may further
refuse to transfer the Securities if certain circumstances are present
reasonably indicating that the proposed transferee's representations are not
accurate. In any event, the Company may refuse to consent to any transfer in the
absence of an opinion of legal counsel, satisfactory to and independent of
counsel for the Company, that such proposed transfer is consistent with the
above conditions and applicable securities laws.
12. Registration. The Company shall have no obligation to register the
Common Stock issuable on exercise of this Option. If no registration statement
is effective on the date of exercise of this Option, the shares of Common Stock
will not be issued unless and until there is available to the Company evidence,
including representations from Optionee, that such shares are being acquired for
investment and not for resale, on which the Company may reasonably rely as to
the availability of an exemption from registration in issuing such Common Stock.
13. No Right to Information. Optionee acknowledges and agrees that
neither the Company, its shareholders, nor its directors and officers, has any
duty or obligation to disclose to Optionee any material information regarding
the business of the Company or affecting the value of the Options or Common
Stock at any time including, without limitation, any information concerning
plans for the Company to make a public offering of its securities or to be
acquired by or merged with or into another firm or entity.
14. Withholding. The Company may, in its sole discretion, satisfy any
obligation to withhold income and employment taxes resulting from the grant or
exercise of this Option (or any other event giving rise to such obligation) in
any of the following ways:
(a) The Company may require Optionee to deliver to the Company
at the time of exercise of this Option an amount of cash equal to such
withholding obligation.
(b) If authorized by the action of the board of directors of the
Company (or a duly appointed committee of the board) upon request by
Optionee, the Company may defer payment of the withholding obligation
for a reasonable period to allow Optionee an opportunity to sell shares
of Common Stock issuable on the exercise of this Option. In the event of
such deferral, the receipt by Optionee of shares of Common Stock on
exercise of this Option shall constitute a grant to the Company by
Optionee of a continuing security interest in such shares of Common
Stock and all proceeds thereof and the appointment of the President of
the Company, and any successor thereto, as attorney-in-fact to sell the
number of shares and collect the proceeds therefrom as may be necessary,
in the opinion of the Company, to satisfy all obligations for the
payment of such taxes.
-4-
<PAGE> 30
(c) The Company may withhold from any compensation or other
amount owing to Optionee the amount (in cash, Common Stock, or other
property as the Company may determine) of the withholding obligation.
(d) If authorized by the action of the board of directors of the
Company (or a duly appointed committee of the board) upon request by
Optionee, the Company may withhold a number of shares of Common Stock
otherwise deliverable upon exercise of this Option having a value,
determined in accordance with the provisions of this Option, equivalent
to the amount of such withholding obligation.
In all events, delivery of shares of Common Stock issuable on exercise of this
Option shall be conditioned upon and subject to the satisfaction or making
provision for the satisfaction of the withholding obligation of the Company
resulting from the exercise of this Option. The Company is hereby further
authorized to take such other action as may be necessary, in the opinion of the
Company, to satisfy all obligations for the payment of such taxes. To the extent
that the holder of this Option is subject to the provisions of section 16(b) of
the Exchange Act, payment of the withholding and other trust fund requirements
of the foregoing methods shall be subject to the transaction qualifying for an
exemption from the provisions of section 16(b) under rule 16b-3 promulgated
pursuant to the Exchange Act or an amendment or successor rule of like tenor.
15. Validity and Construction. The validity and construction of this
Option shall be governed by the laws of the state of Utah.
EXECUTED as of the date first above written.
The Company:
Tomax technologies, inc.
By:
-------------------------------
Duly Authorized Officer
Attest:
-------------------------------
Jaye Olafson, Secretary
Accepted and Agreed:
-------------------------------
Optionee
-5-
<PAGE> 31
EXHIBIT "A"
FORM OF EXERCISE
(TO BE SIGNED ONLY UPON EXERCISE OF OPTION)
TO: Tomax technologies, inc.
The undersigned, the owner of the attached Option, hereby irrevocably
elects to exercise the purchase rights represented by the Option for, and to
purchase thereunder, ____________ shares of Common Stock of Tomax technologies,
inc. Enclosed is payment in the amount of $____________, the exercise price of
the Common Stock to be acquired. Please have the certificate(s) registered in
the name of _______________________________, social security number
____________________, and delivered to the following address:
__________________________________. If this exercise does not include all of the
Common Stock covered by the attached Option, please deliver a new option of like
tenor for the balance of the Common Stock to the undersigned at the foregoing
address.
DATED this ____ day of ______________, 20____.
-------------------------------------------------
Signature (Signature must be guaranteed by a bank
or a registered broker-dealer)
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<PAGE> 32
TOMAX TECHNOLOGIES, INC.
INCENTIVE STOCK OPTION
IT IS IMPORTANT THAT YOU RETAIN THIS DOCUMENT. THIS ORIGINAL INCENTIVE
STOCK OPTION MUST BE DELIVERED TO THE COMPANY ON EXERCISE OR TRANSFER OF
THE OPTION.
THIS INCENTIVE STOCK OPTION (this "Option") is granted effective this
(DATE), by Tomax technologies, inc., a Utah corporation (the "Company"), under
the terms of the 2000 Stock Option and Award Plan (the "Plan"), to (NAME)
("Optionee").
1. Grant of Option. The Company hereby irrevocably grants to Optionee
the right and option to purchase all or any part of an aggregate of (NUMBER)
shares of common stock of the Company, no par value (the "Common Stock"), on the
terms and conditions hereinafter set forth and subject to the provisions of the
Plan.
2. Exercise Price. The exercise price of this Option shall be (PRICE)
per share of Common Stock, the fair market value of the Common Stock on the date
of grant as determined by the board of directors.
3. Term of Option. The right to exercise this Option shall vest in
installments commencing on the first day of the month following the effective
date of this Option and on the first day of the succeeding 47 months thereafter
to the extent of 1/48th of the total number of shares of Common Stock
purchasable under this Option, until this Option may be exercisable respecting
the full number of shares set forth in paragraph 1 above. Subject to the
foregoing and the other provisions of this Option and the Plan, this Option may
be exercised, in whole or in part, at any time prior to five years after the
date of this Option.
4. Shareholder's Rights. Optionee shall have the rights of a shareholder
only with respect to shares of Common Stock fully paid for by Optionee under
this Option.
5. Persons Entitled to Exercise. During Optionee's lifetime, this Option
can only be exercised by Optionee, and neither this Option nor any right
hereunder can be transferred other than by testamentary disposition or the laws
of descent and distribution. Neither this Option nor any right hereunder shall
be subject to lien, attachment, execution, or similar process. In the event of
any alienation, assignment, pledge, hypothecation, or other transfer of this
Option or any right hereunder or in the event of any levy, attachment,
execution, or similar process, this Option and all rights granted hereunder
shall be immediately null and void.
6. Qualification as Incentive Stock Option. This Option is intended to
qualify as an "Incentive Stock Option" under the provisions of the Internal
Revenue Code of 1986, as amended (the "Code"). Optionee acknowledges that in
order to be entitled to receive treatment as an Incentive Stock Option, the
holding and exercise of this Option and the Common Stock acquired pursuant to
this Option are subject to certain limitations and restrictions, including a
requirement that any Common Stock acquired hereunder be held by Optionee until
after the date that is both two years subsequent to the date of this Option and
one year subsequent to the date the Common Stock is acquired pursuant to the
exercise of this Option. Failure to hold the shares of Common Stock for the
above period will cause a "disqualifying disposition" of the Common Stock
resulting in the loss of Incentive Stock Option treatment and the associated
favorable tax benefits. As a result of the disqualifying disposition the Company
will also be subject to certain disclosure requirements, and, therefore,
Optionee agrees to notify the Company, in writing, 30 days prior to any
disqualifying disposition.
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<PAGE> 33
7. Adjustment to Number of Shares of Common Stock. The number of shares
of Common Stock subject to this Option shall be adjusted to take into account
any stock split, stock dividend, or recapitalization of the Common Stock of the
Company as provided in the Plan.
8. Method of Exercise. This Option may be exercised, in accordance with
all of the terms and conditions set forth in this Option and the Plan, by
delivery of this Option, together with a notice of exercise, a form of which is
attached hereto as Exhibit "A" and incorporated herein by this reference,
indicating the number of shares which Optionee then elects to purchase and
payment made in accordance with the following:
(a) If Optionee elects to exercise the Option and make payment,
in whole or in part, for the shares of Common Stock in cash, Optionee
shall include with the notice of exercise a certified check or official
bank check payable to the order of the Company in the amount of the full
option price of the Common Stock being purchased for cash.
(b) If Optionee elects to exercise the Option and make payment,
in whole or in part, for the shares of Common Stock in installments,
Optionee shall include with the notice of exercise a certified check or
official bank check payable to the order of the Company in the amount of
any cash to be paid on exercise, and a promissory note, in form
satisfactory to the Company, executed by Optionee and evidencing the
obligation of Optionee to pay the balance of the exercise price on terms
and conditions acceptable to the board of directors of the Company at
the time of exercise of the Option.
(c) If Optionee elects to exercise the Option and make payment,
in whole or in part, for the shares of Common Stock by such other method
as approved by the board of directors of the Company at the time of
exercise, Optionee shall deliver to the Company such other forms of
payment approved by the board of directors of the Company.
As soon as practicable after receipt by the Company of such notice and
of payment in full of the option price of all the shares of Common Stock with
respect to which the Option has been exercised (including interest if payment is
made in installments), a certificate or certificates representing such shares of
Common Stock having been paid for shall be issued in the name of Optionee, or,
if Optionee shall so request in the notice exercising the Option, in the name of
Optionee and another person jointly, with right of survivorship, and shall be
delivered to Optionee. To the extent required, pursuant to paragraph 12, all
common stock shall be issued only upon receipt by the Company of Optionee's
representation that the shares are purchased for investment and not with a view
to distribution thereof. If this Option is not exercised with respect to all
Common Stock subject hereto, Optionee shall be entitled to receive a similar
Option of like tenor covering the number of shares of Common Stock with respect
to which this Option shall not have been exercised.
9. Availability of Shares. During the term of this Option, the Company
shall at all times keep reserved for issuance the number of shares of Common
Stock required to satisfy the Option.
10. Limitation on Exercise.
(a) If the board of directors of the Company, in its sole
discretion, shall determine that it is necessary or desirable to list,
register, or qualify the Common Stock under any state or federal law,
this Option may not be exercised, in whole or part, until such listing,
registration, or qualification shall have been obtained free of any
conditions not acceptable to the board of directors.
(b) The exercise price times the number of shares of Common
Stock first exercisable in any calendar year, together with the fair
market value of the shares of Common Stock subject to any other options
held by Optionee that are first exercisable in such year, shall
-2-
<PAGE> 34
not exceed $100,000 (any Options first becoming exercisable in any
calendar year in excess of such amount shall not be treated as incentive
stock options).
(c) This Option shall terminate thirty days after Optionee
ceases to be an eligible employee of the Company as defined in the Code
and the Plan. In addition, no Option granted herein may be exercised
unless Optionee was, within thirty days of such exercise, and has been
since the date the Option was granted, an eligible employee of the
Company as specified in the applicable provisions of the Code, unless
Optionee ceased being an eligible employee as a result of death or
Optionee dies during the thirty-day period subsequent to his ceasing to
be an eligible employee; provided, the Option may be exercised by any
Optionee who ceases employment due to a disability as defined in the
Code, section 22(e)(3), or any amendment to that section or any
successor section of like tenor, within 12 months of such termination.
An authorized absence or leave approved by the board of directors shall
not be considered an interruption of employment for any purpose under
this Option.
(d) In the event that Optionee is terminated at any time for
cause pursuant to any written employment agreement between Optionee and
Optionee's employer or, if there is no such written employment
agreement, on the occurrence of any of the following: (i) Optionee's
conduct involving the business affairs of the employer constituting
common law fraud, conviction of a felony, embezzlement from the employer
or the Company, or other willful or malicious unlawful conduct of a
similar nature; (ii) any material breach by Optionee of the provisions
of the written employment policies or procedures of Optionee's employer
or the Company that are applicable to Optionee; or (iii) Optionee has
been grossly negligent in the performance of his duties or has
substantially failed to meet reasonable standards established by the
Company for the performance of his duties, any and all rights such
individual may have to the unexercised portion of this Option held at
the time of termination shall immediately terminate and be void.
(e) In the event, at any time within (i) the term of this
Option, (ii) three years after termination of Optionee's employment with
the Company, or (iii) three years after exercise of any portion of this
Option by Optionee, whichever is the latest, Optionee engages in any
activity in competition with any activity of the Company, or inimical,
contrary or harmful to the interests of the Company, including, but not
limited to, (1) conduct related to Optionee's employment for which
either criminal or civil penalties against Optionee may be sought, (2)
violation of Company policies, including, without limitation, the
Company's insider trading policy, (3) accepting employment with or
serving as a consultant, advisor or in any other capacity to an employer
that is in competition with or acting against the interests of the
Company, including employing or recruiting any present, former or future
employee of the Company, (4) disclosing or misusing any confidential
information or material concerning the Company, or (5) participating in
a hostile takeover attempt, then this Option shall terminate effective
on the date on which Optionee enters into such activity, unless sooner
terminated by operation of another term or condition of this Option or
the Plan, and any option gain realized by Optionee from exercising all
or a portion of this Option shall be paid by Optionee to the Company.
Optionee consents and agrees to a deduction from any amounts the Company
owes Optionee from time to time (including amounts owed to Optionee as
wages or other compensation, fringe benefits, or vacation pay, as well
as any other amounts owed to Optionee by the Company), to the extent of
the amounts Optionee owes the Company hereunder. Whether or not the
Company elects to make any set-off in whole or in part, if the Company
does not recover by means of set-off the full amount Optionee owes the
Company, calculated as set forth herein, Optionee agrees to pay
immediately the unpaid balance to the Company.
(f) In the event the Company is a party to a reorganization or
similar transaction with respect to which "pooling of interest"
treatment (within the meaning of APB 16) is, in the opinion of the
independent certified public accountants of the Company, available for
such
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<PAGE> 35
transaction, the Company shall have the right, exercisable in its sole
and absolute discretion, to cancel this Option on the day immediately
preceding the effective date of the transaction and in consideration
thereof to pay to the Optionee an amount of cash equal to the difference
between the then fair market value of the Common Stock that would have
been issuable on exercise of the Options so canceled and the exercise
price for the purchase of such shares on exercise. For purposes hereof,
fair market value shall mean the closing price for such stock as quoted
on a registered national securities exchange or, if not listed on a
national exchange, the Nasdaq Stock Market ("Nasdaq"), over the five-day
trading period immediately preceding the date of determination of fair
market value, or, if not listed on such an exchange or included on
Nasdaq, shall mean the closing price (or, if no closing price is
available from sources deemed reliable by the Company, the closing bid
quotation) for such stock on the close of business on the trading day
last preceding the date of determination of fair market value, or, if no
such information is available or deemed reliable by the Company, the
amount determined by the board of directors of the Company through any
other means of determination available.
11. No Right of Employment. Nothing contained in this Option shall be
construed as conferring any right to continue or remain as an officer, director,
or employee of the Company or any subsidiary.
12. Restriction on Transfer. The Option and the shares of Common Stock
subject to this Option (collectively referred to as the "Securities") are
subject to registration under the Securities Act of 1933, as amended (the
"Securities Act"), and any applicable state securities statutes. Optionee
acknowledges that unless a registration statement with respect to the Securities
is filed and declared effective by the Securities and Exchange Commission and
the appropriate state governing agency, the Securities have or will be issued in
reliance on specific exemptions from such registration requirements for
transactions by an issuer not involving a public offering and specific
exemptions under state statutes. Any disposition of the Securities may, under
certain circumstances, be inconsistent with such exemptions. The Securities may
be offered for sale, sold, or otherwise transferred only if (i) registered under
the Securities Act, and in some cases, under the applicable state securities
acts, or, if not registered, (ii) only if such disposition is pursuant to an
exemption from such registration requirements and only after Optionee provides
an opinion of counsel or other evidence satisfactory to the Company to the
effect that registration is not required. In some states, specific conditions
must be met or approval of the securities regulatory authorities may be required
before any such offer or sale. The Company is under no obligation to register
the Securities with the Securities and Exchange Commission or any state agency.
If rule 144 is available (and no assurance is given that it will be), only
routine sales of the Common Stock in limited amounts can be made after one year
following the acquisition date of the Securities, as determined under rule
144(d), in accordance with the terms and conditions of rule 144. The Company is
under no obligation to make rule 144 available. In the event rule 144 is not
available, compliance with regulation A or some other disclosure exemption may
be required before Optionee can sell, transfer, or otherwise dispose of the
Securities without registration. The Company and its registrar and transfer
agent will maintain a stop transfer order against the transfer of the
Securities, and this Option and any other certificate or agreement representing
the Securities is subject to the following legend:
THE SECURITIES REPRESENTED BY THIS OPTION AGREEMENT OR CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND ARE "RESTRICTED SECURITIES" WITHIN THE MEANING OF
RULE 144 PROMULGATED UNDER THE SECURITIES ACT. THE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD OR TRANSFERRED WITHOUT
COMPLYING WITH RULE 144 IN THE ABSENCE OF AN EFFECTIVE REGISTRATION OR
OTHER COMPLIANCE UNDER THE SECURITIES ACT.
-4-
<PAGE> 36
The Company may refuse to transfer the Securities to any transferee who
does not furnish in writing to the Company the same representations and
warranties set forth in this paragraph and agree to the same conditions with
respect to such Securities as are set forth herein. The Company may further
refuse to transfer the Securities if certain circumstances are present
reasonably indicating that the proposed transferee's representations are not
accurate. In any event, the Company may refuse to consent to any transfer in the
absence of an opinion of legal counsel, satisfactory to and independent of
counsel for the Company, that such proposed transfer is consistent with the
above conditions and applicable securities laws.
13. Registration. The Company shall have no obligation to register the
Common Stock issuable on exercise of this Option. If no registration statement
is effective on the date of exercise of this Option, the shares of Common Stock
will not be issued unless and until there is available to the Company evidence,
including representations from Optionee, that such shares are being acquired for
investment and not for resale, on which the Company may reasonably rely as to
the availability of an exemption from registration in issuing such Common Stock.
14. No Right to Information. Optionee acknowledges and agrees that
neither the Company, its shareholders, nor its directors and officers, has any
duty or obligation to disclose to Optionee any material information regarding
the business of the Company or affecting the value of the Options or Common
Stock before or at the time of termination of the employment of Optionee by the
Company including, without limitation, any information concerning plans for the
Company to make a public offering of its securities or to be acquired by or
merged with or into another firm or entity.
15. Other Limitations and Restrictions. All Options granted hereunder
shall be deemed to contain such other limitations and restrictions as are
necessary to conform the Option to the requirements for "Incentive Stock
Options" as defined in section 422 of the Code, or any amendment or successor
statute of like tenor.
16. Withholding. The Company may, in its sole discretion, satisfy any
obligation to withhold income and employment taxes resulting from the grant or
exercise of this Option (or any other event giving rise to such obligation) in
any of the following ways:
(a) The Company may require Optionee to deliver to the Company
at the time of exercise of this Option an amount of cash equal to such
withholding obligation.
(b) If authorized by the action of the board of directors of the
Company (or a duly appointed committee of the board) upon request by
Optionee, the Company may defer payment of the withholding obligation
for a reasonable period to allow Optionee an opportunity to sell shares
of Common Stock issuable on the exercise of this Option. In the event of
such deferral, the receipt by Optionee of shares of Common Stock on
exercise of this Option shall constitute a grant to the Company by
Optionee of a continuing security interest in such shares of Common
Stock and all proceeds thereof and the appointment of the President of
the Company, and any successor thereto, as attorney-in-fact to sell the
number of shares and collect the proceeds therefrom as may be necessary,
in the opinion of the Company, to satisfy all obligations for the
payment of such taxes.
(c) The Company may withhold from any compensation or other
amount owing to Optionee the amount (in cash, Common Stock, or other
property as the Company may determine) of the withholding obligation.
(d) If authorized by the action of the board of directors of the
Company (or a duly appointed committee of the board) upon request by
Optionee, the Company may withhold a number of shares of Common Stock
otherwise deliverable upon exercise of this Option having a
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<PAGE> 37
value, determined in accordance with the provisions of this Option,
equivalent to the amount of such withholding obligation.
In all events, delivery of shares of Common Stock issuable on exercise of this
Option shall be conditioned upon and subject to the satisfaction or making
provision for the satisfaction of the withholding obligation of the Company
resulting from the exercise of this Option. The Company is hereby further
authorized to take such other action as may be necessary, in the opinion of the
Company, to satisfy all obligations for the payment of such taxes. To the extent
that the holder of this Option is subject to the provisions of section 16(b) of
the Exchange Act, payment of the withholding and other trust fund requirements
of the foregoing methods shall be subject to the transaction qualifying for an
exemption from the provisions of section 16(b) under rule 16b-3 promulgated
pursuant to the Exchange Act or an amendment or successor rule of like tenor.
17. Validity and Construction. The validity and construction of this
Option shall be governed by the laws of the state of Utah.
18. Notice of Disposition. Optionee shall give notice in writing to the
Company of any disposition or transfer of this Option, whether by gift, sale,
exchange, or otherwise.
EXECUTED as of the date first above written.
The Company:
Tomax technologies, inc.
By:
----------------------------
Duly Authorized Officer
Attest:
--------------------------------
Jaye Olafson, Secretary
Accepted and Agreed:
--------------------------------
Optionee
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<PAGE> 38
EXHIBIT "A"
FORM OF EXERCISE
(TO BE SIGNED ONLY UPON EXERCISE OF OPTION)
TO: Tomax technologies, inc.
The undersigned, the owner of the attached Option, hereby irrevocable
elects to exercise the purchase rights represented by the Option for, and to
purchase thereunder, ____________ shares of Common Stock of Tomax technologies,
inc. Enclosed is payment in the amount of $____________, the exercise price of
the Common Stock to be acquired. Please have the certificate(s) registered in
the name of _______________________________, social security number
____________________, and delivered to the following address:
__________________________________. If this exercise does not include all of the
Common Stock covered by the attached Option, please deliver a new option of like
tenor for the balance of the Common Stock to the undersigned at the foregoing
address.
DATED this ____ day of ______________, 20____.
-------------------------------------------------
Signature (Signature must be guaranteed by a bank
or a registered broker-dealer)
-1-
<PAGE> 39
TOMAX TECHNOLOGIES, INC.
INCENTIVE STOCK OPTION
IT IS IMPORTANT THAT YOU RETAIN THIS DOCUMENT. THIS ORIGINAL INCENTIVE
STOCK OPTION MUST BE DELIVERED TO THE COMPANY ON EXERCISE OR TRANSFER OF
THE OPTION.
THIS INCENTIVE STOCK OPTION (this "Option") is granted effective this
(DATE), by Tomax technologies, inc., a Utah corporation (the "Company"), under
the terms of the 2000 Stock Option and Award Plan (the "Plan"), to (NAME)
("Optionee").
1. Grant of Option. The Company hereby irrevocably grants to Optionee
the right and option to purchase all or any part of an aggregate of (NUMBER)
shares of common stock of the Company, no par value (the "Common Stock"), on the
terms and conditions hereinafter set forth and subject to the provisions of the
Plan.
2. Exercise Price. The exercise price of this Option shall be (PRICE)
per share of Common Stock, the fair market value of the Common Stock on the date
of grant as determined by the board of directors.
3. Term of Option. The right to exercise this Option shall vest in
installments commencing on the first day of the month following the effective
date of this Option and on the first day of the succeeding 47 months thereafter
to the extent of 1/48th of the total number of shares of Common Stock
purchasable under this Option, until this Option may be exercisable respecting
the full number of shares set forth in paragraph 1 above. Subject to the
foregoing and the other provisions of this Option and the Plan, this Option may
be exercised, in whole or in part, at any time prior to five years after the
date of this Option.
4. Shareholder's Rights. Optionee shall have the rights of a shareholder
only with respect to shares of Common Stock fully paid for by Optionee under
this Option.
5. Persons Entitled to Exercise. During Optionee's lifetime, this Option
can only be exercised by Optionee, and neither this Option nor any right
hereunder can be transferred other than by testamentary disposition or the laws
of descent and distribution. Neither this Option nor any right hereunder shall
be subject to lien, attachment, execution, or similar process. In the event of
any alienation, assignment, pledge, hypothecation, or other transfer of this
Option or any right hereunder or in the event of any levy, attachment,
execution, or similar process, this Option and all rights granted hereunder
shall be immediately null and void.
6. Qualification as Incentive Stock Option. This Option is intended to
qualify as an "Incentive Stock Option" under the provisions of the Internal
Revenue Code of 1986, as amended (the "Code"). Optionee acknowledges that in
order to be entitled to receive treatment as an Incentive Stock Option, the
holding and exercise of this Option and the Common Stock acquired pursuant to
this Option are subject to certain limitations and restrictions, including a
requirement that any Common Stock acquired hereunder be held by Optionee until
after the date that is both two years subsequent to the date of this Option and
one year subsequent to the date the Common Stock is acquired pursuant to the
exercise of this Option. Failure to hold the shares of Common Stock for the
above period will cause a "disqualifying disposition" of the Common Stock
resulting in the loss of Incentive Stock Option treatment and the associated
favorable tax benefits. As a result of the disqualifying disposition the Company
will also be subject to certain disclosure requirements, and, therefore,
Optionee agrees to notify the Company, in writing, 30 days prior to any
disqualifying disposition.
-1-
<PAGE> 40
7. Adjustment to Number of Shares of Common Stock. The number of shares
of Common Stock subject to this Option shall be adjusted to take into account
any stock split, stock dividend, or recapitalization of the Common Stock of the
Company as provided in the Plan.
8. Method of Exercise. This Option may be exercised, in accordance with
all of the terms and conditions set forth in this Option and the Plan, by
delivery of this Option, together with a notice of exercise, a form of which is
attached hereto as Exhibit "A" and incorporated herein by this reference,
indicating the number of shares which Optionee then elects to purchase and
payment made in accordance with the following:
(a) If Optionee elects to exercise the Option and make payment,
in whole or in part, for the shares of Common Stock in cash, Optionee
shall include with the notice of exercise a certified check or official
bank check payable to the order of the Company in the amount of the full
option price of the Common Stock being purchased for cash.
(b) If Optionee elects to exercise the Option and make payment,
in whole or in part, for the shares of Common Stock in installments,
Optionee shall include with the notice of exercise a certified check or
official bank check payable to the order of the Company in the amount of
any cash to be paid on exercise, and a promissory note, in form
satisfactory to the Company, executed by Optionee and evidencing the
obligation of Optionee to pay the balance of the exercise price on terms
and conditions acceptable to the board of directors of the Company at
the time of exercise of the Option.
(c) If Optionee elects to exercise the Option and make payment,
in whole or in part, for the shares of Common Stock by such other method
as approved by the board of directors of the Company at the time of
exercise, Optionee shall deliver to the Company such other forms of
payment approved by the board of directors of the Company.
As soon as practicable after receipt by the Company of such notice and
of payment in full of the option price of all the shares of Common Stock with
respect to which the Option has been exercised (including interest if payment is
made in installments), a certificate or certificates representing such shares of
Common Stock having been paid for shall be issued in the name of Optionee, or,
if Optionee shall so request in the notice exercising the Option, in the name of
Optionee and another person jointly, with right of survivorship, and shall be
delivered to Optionee. To the extent required, pursuant to paragraph 12, all
common stock shall be issued only upon receipt by the Company of Optionee's
representation that the shares are purchased for investment and not with a view
to distribution thereof. If this Option is not exercised with respect to all
Common Stock subject hereto, Optionee shall be entitled to receive a similar
Option of like tenor covering the number of shares of Common Stock with respect
to which this Option shall not have been exercised.
9. Availability of Shares. During the term of this Option, the Company
shall at all times keep reserved for issuance the number of shares of Common
Stock required to satisfy the Option.
10. Limitation on Exercise.
(a) If the board of directors of the Company, in its sole
discretion, shall determine that it is necessary or desirable to list,
register, or qualify the Common Stock under any state or federal law,
this Option may not be exercised, in whole or part, until such listing,
registration, or qualification shall have been obtained free of any
conditions not acceptable to the board of directors.
(b) The exercise price times the number of shares of Common
Stock first exercisable in any calendar year, together with the fair
market value of the shares of Common Stock subject to any other options
held by Optionee that are first exercisable in such year, shall
-2-
<PAGE> 41
not exceed $100,000 (any Options first becoming exercisable in any
calendar year in excess of such amount shall not be treated as incentive
stock options).
(c) This Option shall terminate thirty days after Optionee
ceases to be an eligible employee of the Company as defined in the Code
and the Plan. In addition, no Option granted herein may be exercised
unless Optionee was, within thirty days of such exercise, and has been
since the date the Option was granted, an eligible employee of the
Company as specified in the applicable provisions of the Code, unless
Optionee ceased being an eligible employee as a result of death or
Optionee dies during the thirty-day period subsequent to his ceasing to
be an eligible employee; provided, the Option may be exercised by any
Optionee who ceases employment due to a disability as defined in the
Code, section 22(e)(3), or any amendment to that section or any
successor section of like tenor, within 12 months of such termination.
An authorized absence or leave approved by the board of directors shall
not be considered an interruption of employment for any purpose under
this Option.
(d) In the event that Optionee is terminated at any time for
cause pursuant to any written employment agreement between Optionee and
Optionee's employer or, if there is no such written employment
agreement, on the occurrence of any of the following: (i) Optionee's
conduct involving the business affairs of the employer constituting
common law fraud, conviction of a felony, embezzlement from the employer
or the Company, or other willful or malicious unlawful conduct of a
similar nature; (ii) any material breach by Optionee of the provisions
of the written employment policies or procedures of Optionee's employer
or the Company that are applicable to Optionee; or (iii) Optionee has
been grossly negligent in the performance of his duties or has
substantially failed to meet reasonable standards established by the
Company for the performance of his duties, any and all rights such
individual may have to the unexercised portion of this Option held at
the time of termination shall immediately terminate and be void.
(e) In the event, at any time within (i) the term of this
Option, (ii) three years after termination of Optionee's employment with
the Company, or (iii) three years after exercise of any portion of this
Option by Optionee, whichever is the latest, Optionee engages in any
activity in competition with any activity of the Company, or inimical,
contrary or harmful to the interests of the Company, including, but not
limited to, (1) conduct related to Optionee's employment for which
either criminal or civil penalties against Optionee may be sought, (2)
violation of Company policies, including, without limitation, the
Company's insider trading policy, (3) accepting employment with or
serving as a consultant, advisor or in any other capacity to an employer
that is in competition with or acting against the interests of the
Company, including employing or recruiting any present, former or future
employee of the Company, (4) disclosing or misusing any confidential
information or material concerning the Company, or (5) participating in
a hostile takeover attempt, then this Option shall terminate effective
on the date on which Optionee enters into such activity, unless sooner
terminated by operation of another term or condition of this Option or
the Plan, and any option gain realized by Optionee from exercising all
or a portion of this Option shall be paid by Optionee to the Company.
Optionee consents and agrees to a deduction from any amounts the Company
owes Optionee from time to time (including amounts owed to Optionee as
wages or other compensation, fringe benefits, or vacation pay, as well
as any other amounts owed to Optionee by the Company), to the extent of
the amounts Optionee owes the Company hereunder. Whether or not the
Company elects to make any set-off in whole or in part, if the Company
does not recover by means of set-off the full amount Optionee owes the
Company, calculated as set forth herein, Optionee agrees to pay
immediately the unpaid balance to the Company.
(f) In the event the Company is a party to a reorganization or
similar transaction with respect to which "pooling of interest"
treatment (within the meaning of APB 16) is, in the opinion of the
independent certified public accountants of the Company, available for
such
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<PAGE> 42
transaction, the Company shall have the right, exercisable in its sole
and absolute discretion, to cancel this Option on the day immediately
preceding the effective date of the transaction and in consideration
thereof to pay to the Optionee an amount of cash equal to the difference
between the then fair market value of the Common Stock that would have
been issuable on exercise of the Options so canceled and the exercise
price for the purchase of such shares on exercise. For purposes hereof,
fair market value shall mean the closing price for such stock as quoted
on a registered national securities exchange or, if not listed on a
national exchange, the Nasdaq Stock Market ("Nasdaq"), over the five-day
trading period immediately preceding the date of determination of fair
market value, or, if not listed on such an exchange or included on
Nasdaq, shall mean the closing price (or, if no closing price is
available from sources deemed reliable by the Company, the closing bid
quotation) for such stock on the close of business on the trading day
last preceding the date of determination of fair market value, or, if no
such information is available or deemed reliable by the Company, the
amount determined by the board of directors of the Company through any
other means of determination available.
11. No Right of Employment. Nothing contained in this Option shall be
construed as conferring any right to continue or remain as an officer, director,
or employee of the Company or any subsidiary.
12. Restriction on Transfer. The Option and the shares of Common Stock
subject to this Option (collectively referred to as the "Securities") are
subject to registration under the Securities Act of 1933, as amended (the
"Securities Act"), and any applicable state securities statutes. Optionee
acknowledges that unless a registration statement with respect to the Securities
is filed and declared effective by the Securities and Exchange Commission and
the appropriate state governing agency, the Securities have or will be issued in
reliance on specific exemptions from such registration requirements for
transactions by an issuer not involving a public offering and specific
exemptions under state statutes. Any disposition of the Securities may, under
certain circumstances, be inconsistent with such exemptions. The Securities may
be offered for sale, sold, or otherwise transferred only if (i) registered under
the Securities Act, and in some cases, under the applicable state securities
acts, or, if not registered, (ii) only if such disposition is pursuant to an
exemption from such registration requirements and only after Optionee provides
an opinion of counsel or other evidence satisfactory to the Company to the
effect that registration is not required. In some states, specific conditions
must be met or approval of the securities regulatory authorities may be required
before any such offer or sale. The Company is under no obligation to register
the Securities with the Securities and Exchange Commission or any state agency.
If rule 144 is available (and no assurance is given that it will be), only
routine sales of the Common Stock in limited amounts can be made after one year
following the acquisition date of the Securities, as determined under rule
144(d), in accordance with the terms and conditions of rule 144. The Company is
under no obligation to make rule 144 available. In the event rule 144 is not
available, compliance with regulation A or some other disclosure exemption may
be required before Optionee can sell, transfer, or otherwise dispose of the
Securities without registration. The Company and its registrar and transfer
agent will maintain a stop transfer order against the transfer of the
Securities, and this Option and any other certificate or agreement representing
the Securities is subject to the following legend:
THE SECURITIES REPRESENTED BY THIS OPTION AGREEMENT OR CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND ARE "RESTRICTED SECURITIES" WITHIN THE MEANING OF
RULE 144 PROMULGATED UNDER THE SECURITIES ACT. THE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD OR TRANSFERRED WITHOUT
COMPLYING WITH RULE 144 IN THE ABSENCE OF AN EFFECTIVE REGISTRATION OR
OTHER COMPLIANCE UNDER THE SECURITIES ACT.
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<PAGE> 43
The Company may refuse to transfer the Securities to any transferee who
does not furnish in writing to the Company the same representations and
warranties set forth in this paragraph and agree to the same conditions with
respect to such Securities as are set forth herein. The Company may further
refuse to transfer the Securities if certain circumstances are present
reasonably indicating that the proposed transferee's representations are not
accurate. In any event, the Company may refuse to consent to any transfer in the
absence of an opinion of legal counsel, satisfactory to and independent of
counsel for the Company, that such proposed transfer is consistent with the
above conditions and applicable securities laws.
13. Registration. The Company shall have no obligation to register the
Common Stock issuable on exercise of this Option. If no registration statement
is effective on the date of exercise of this Option, the shares of Common Stock
will not be issued unless and until there is available to the Company evidence,
including representations from Optionee, that such shares are being acquired for
investment and not for resale, on which the Company may reasonably rely as to
the availability of an exemption from registration in issuing such Common Stock.
14. No Right to Information. Optionee acknowledges and agrees that
neither the Company, its shareholders, nor its directors and officers, has any
duty or obligation to disclose to Optionee any material information regarding
the business of the Company or affecting the value of the Options or Common
Stock before or at the time of termination of the employment of Optionee by the
Company including, without limitation, any information concerning plans for the
Company to make a public offering of its securities or to be acquired by or
merged with or into another firm or entity.
15. Other Limitations and Restrictions. All Options granted hereunder
shall be deemed to contain such other limitations and restrictions as are
necessary to conform the Option to the requirements for "Incentive Stock
Options" as defined in section 422 of the Code, or any amendment or successor
statute of like tenor.
16. Withholding. The Company may, in its sole discretion, satisfy any
obligation to withhold income and employment taxes resulting from the grant or
exercise of this Option (or any other event giving rise to such obligation) in
any of the following ways:
(a) The Company may require Optionee to deliver to the Company
at the time of exercise of this Option an amount of cash equal to such
withholding obligation.
(b) If authorized by the action of the board of directors of the
Company (or a duly appointed committee of the board) upon request by
Optionee, the Company may defer payment of the withholding obligation
for a reasonable period to allow Optionee an opportunity to sell shares
of Common Stock issuable on the exercise of this Option. In the event of
such deferral, the receipt by Optionee of shares of Common Stock on
exercise of this Option shall constitute a grant to the Company by
Optionee of a continuing security interest in such shares of Common
Stock and all proceeds thereof and the appointment of the President of
the Company, and any successor thereto, as attorney-in-fact to sell the
number of shares and collect the proceeds therefrom as may be necessary,
in the opinion of the Company, to satisfy all obligations for the
payment of such taxes.
(c) The Company may withhold from any compensation or other
amount owing to Optionee the amount (in cash, Common Stock, or other
property as the Company may determine) of the withholding obligation.
(d) If authorized by the action of the board of directors of the
Company (or a duly appointed committee of the board) upon request by
Optionee, the Company may withhold a number of shares of Common Stock
otherwise deliverable upon exercise of this Option having a
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<PAGE> 44
value, determined in accordance with the provisions of this Option,
equivalent to the amount of such withholding obligation.
In all events, delivery of shares of Common Stock issuable on exercise of this
Option shall be conditioned upon and subject to the satisfaction or making
provision for the satisfaction of the withholding obligation of the Company
resulting from the exercise of this Option. The Company is hereby further
authorized to take such other action as may be necessary, in the opinion of the
Company, to satisfy all obligations for the payment of such taxes. To the extent
that the holder of this Option is subject to the provisions of section 16(b) of
the Exchange Act, payment of the withholding and other trust fund requirements
of the foregoing methods shall be subject to the transaction qualifying for an
exemption from the provisions of section 16(b) under rule 16b-3 promulgated
pursuant to the Exchange Act or an amendment or successor rule of like tenor.
17. Validity and Construction. The validity and construction of this
Option shall be governed by the laws of the state of Utah.
18. Notice of Disposition. Optionee shall give notice in writing to the
Company of any disposition or transfer of this Option, whether by gift, sale,
exchange, or otherwise.
EXECUTED as of the date first above written.
The Company:
Tomax technologies, inc.
By:
----------------------------
Duly Authorized Officer
Attest:
--------------------------------
Jaye Olafson, Secretary
Accepted and Agreed:
--------------------------------
Optionee
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<PAGE> 45
EXHIBIT "A"
FORM OF EXERCISE
(TO BE SIGNED ONLY UPON EXERCISE OF OPTION)
TO: Tomax technologies, inc.
The undersigned, the owner of the attached Option, hereby irrevocable
elects to exercise the purchase rights represented by the Option for, and to
purchase thereunder, ____________ shares of Common Stock of Tomax technologies,
inc. Enclosed is payment in the amount of $____________, the exercise price of
the Common Stock to be acquired. Please have the certificate(s) registered in
the name of _______________________________, social security number
____________________, and delivered to the following address:
__________________________________. If this exercise does not include all of the
Common Stock covered by the attached Option, please deliver a new option of like
tenor for the balance of the Common Stock to the undersigned at the foregoing
address.
DATED this ____ day of ______________, 20____.
-------------------------------------------------
Signature (Signature must be guaranteed by a bank
or a registered broker-dealer)
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<PAGE> 46
TOMAX TECHNOLOGIES, INC.
INCENTIVE STOCK OPTION
(EXECUTIVE OFFICERS)
IT IS IMPORTANT THAT YOU RETAIN THIS DOCUMENT. THIS ORIGINAL INCENTIVE
STOCK OPTION MUST BE DELIVERED TO THE COMPANY ON EXERCISE OR TRANSFER OF
THE OPTION.
THIS INCENTIVE STOCK OPTION (this "Option") is granted effective (DATE),
by Tomax technologies, inc., a Utah corporation (the "Company"), under the terms
of the 2000 Stock Option and Award Plan (the "Plan"), to (NAME) ("Optionee").
1. Grant of Option. The Company hereby irrevocably grants to Optionee
the right and option to purchase all or any part of an aggregate of (NUMBER)
shares of common stock of the Company, no par value (the "Common Stock"), on the
terms and conditions hereinafter set forth and subject to the provisions of the
Plan.
2. Exercise Price. The exercise price of this Option shall be (PRICE)
per share of Common Stock, the fair market value of the Common Stock on the date
of grant as determined by the board of directors.
3. Term of Option. The right to exercise this Option shall vest in
installments commencing on the first day of the month following the effective
date of this Option and on the first day of the succeeding 47 months thereafter
to the extent of 1/48th of the total number of shares of Common Stock
purchasable under this Option, until this Option may be exercisable respecting
the full number of shares set forth in paragraph 1 above. Subject to the
foregoing and the other provisions of this Option and the Plan, this Option may
be exercised, in whole or in part, at any time prior to five years after the
date of this Option.
4. Shareholder's Rights. Optionee shall have the rights of a shareholder
only with respect to shares of Common Stock fully paid for by Optionee under
this Option.
5. Persons Entitled to Exercise. During Optionee's lifetime, this Option
can only be exercised by Optionee, and neither this Option nor any right
hereunder can be transferred other than by testamentary disposition or the laws
of descent and distribution. Neither this Option nor any right hereunder shall
be subject to lien, attachment, execution, or similar process. In the event of
any alienation, assignment, pledge, hypothecation, or other transfer of this
Option or any right hereunder or in the event of any levy, attachment,
execution, or similar process, this Option and all rights granted hereunder
shall be immediately null and void.
6. Qualification as Incentive Stock Option. This Option is intended to
qualify as an "Incentive Stock Option" under the provisions of the Internal
Revenue Code of 1986, as amended (the "Code"). Optionee acknowledges that in
order to be entitled to receive treatment as an Incentive Stock Option, the
holding and exercise of this Option and the Common Stock acquired pursuant to
this Option are subject to certain limitations and restrictions, including a
requirement that any Common Stock acquired hereunder be held by Optionee until
after the date that is both two years subsequent to the date of this Option and
one year subsequent to the date the Common Stock is acquired pursuant to the
exercise of this Option. Failure to hold the shares of Common Stock for the
above period will cause a "disqualifying disposition" of the Common Stock
resulting in the loss of Incentive Stock Option
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<PAGE> 47
treatment and the associated favorable tax benefits. As a result of the
disqualifying disposition the Company will also be subject to certain disclosure
requirements, and, therefore, Optionee agrees to notify the Company, in writing,
30 days prior to any disqualifying disposition.
7. Adjustment to Number of Shares of Common Stock. The number of shares
of Common Stock subject to this Option shall be adjusted to take into account
any stock split, stock dividend, or recapitalization of the Common Stock of the
Company as provided in the Plan.
8. Method of Exercise. This Option may be exercised, in accordance with
all of the terms and conditions set forth in this Option and the Plan, by
delivery of this Option, together with a notice of exercise, a form of which is
attached hereto as Exhibit "A" and incorporated herein by this reference,
indicating the number of shares which Optionee then elects to purchase and
payment made in accordance with the following:
(a) If Optionee elects to exercise the Option and make payment,
in whole or in part, for the shares of Common Stock in cash, Optionee
shall include with the notice of exercise a certified check or official
bank check payable to the order of the Company in the amount of the full
option price of the Common Stock being purchased for cash.
(b) If Optionee elects to exercise the Option and make payment,
in whole or in part, for the shares of Common Stock in installments,
Optionee shall include with the notice of exercise a certified check or
official bank check payable to the order of the Company in the amount of
any cash to be paid on exercise, and a promissory note, in form
satisfactory to the Company, executed by Optionee and evidencing the
obligation of Optionee to pay the balance of the exercise price on terms
and conditions acceptable to the board of directors of the Company at
the time of exercise of the Option.
(c) If Optionee elects to exercise the Option and make payment,
in whole or in part, for the shares of Common Stock by such other method
as approved by the board of directors of the Company at the time of
exercise, Optionee shall deliver to the Company such other forms of
payment approved by the board of directors of the Company.
As soon as practicable after receipt by the Company of such notice and
of payment in full of the option price of all the shares of Common Stock with
respect to which the Option has been exercised (including interest if payment is
made in installments), a certificate or certificates representing such shares of
Common Stock having been paid for shall be issued in the name of Optionee, or,
if Optionee shall so request in the notice exercising the Option, in the name of
Optionee and another person jointly, with right of survivorship, and shall be
delivered to Optionee. To the extent required, pursuant to paragraph 12, all
common stock shall be issued only upon receipt by the Company of Optionee's
representation that the shares are purchased for investment and not with a view
to distribution thereof. If this Option is not exercised with respect to all
Common Stock subject hereto, Optionee shall be entitled to receive a similar
Option of like tenor covering the number of shares of Common Stock with respect
to which this Option shall not have been exercised.
9. Availability of Shares. During the term of this Option, the Company
shall at all times keep reserved for issuance the number of shares of Common
Stock required to satisfy the Option.
10. Limitation on Exercise.
(a) If the board of directors of the Company, in its sole
discretion, shall determine that it is necessary or desirable to list,
register, or qualify the Common Stock under any state or
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<PAGE> 48
federal law, this Option may not be exercised, in whole or part, until
such listing, registration, or qualification shall have been obtained
free of any conditions not acceptable to the board of directors.
(b) The exercise price times the number of shares of Common
Stock first exercisable in any calendar year, together with the fair
market value of the shares of Common Stock subject to any other options
held by Optionee that are first exercisable in such year, shall not
exceed $100,000 (any Options first becoming exercisable in any calendar
year in excess of such amount shall not be treated as incentive stock
options).
(c) This Option shall terminate thirty days after Optionee
ceases to be an eligible employee of the Company as defined in the Code
and the Plan. In addition, no Option granted herein may be exercised
unless Optionee was, within thirty days of such exercise, and has been
since the date the Option was granted, an eligible employee of the
Company as specified in the applicable provisions of the Code, unless
Optionee ceased being an eligible employee as a result of death or
Optionee dies during the thirty-day period subsequent to his ceasing to
be an eligible employee; provided, the Option may be exercised by any
Optionee who ceases employment due to a disability as defined in the
Code, section 22(e)(3), or any amendment to that section or any
successor section of like tenor, within 12 months of such termination.
An authorized absence or leave approved by the board of directors shall
not be considered an interruption of employment for any purpose under
this Option.
(d) In the event that Optionee is terminated at any time for
cause pursuant to any written employment agreement between Optionee and
Optionee's employer or, if there is no such written employment
agreement, on the occurrence of any of the following: (i) Optionee's
conduct involving the business affairs of the employer constituting
common law fraud, conviction of a felony, embezzlement from the employer
or the Company, or other willful or malicious unlawful conduct of a
similar nature; (ii) any material breach by Optionee of the provisions
of the written employment policies or procedures of Optionee's employer
or the Company that are applicable to Optionee; or (iii) Optionee has
been grossly negligent in the performance of his duties or has
substantially failed to meet reasonable standards established by the
Company for the performance of his duties, any and all rights such
individual may have to the unexercised portion of this Option held at
the time of termination shall immediately terminate and be void.
(e) In the event, at any time within (i) the term of this
Option, (ii) three years after termination of Optionee's employment with
the Company, or (iii) three years after exercise of any portion of this
Option by Optionee, whichever is the latest, Optionee engages in any
activity in competition with any activity of the Company, or inimical,
contrary or harmful to the interests of the Company, including, but not
limited to, (1) conduct related to Optionee's employment for which
either criminal or civil penalties against Optionee may be sought, (2)
violation of Company policies, including, without limitation, the
Company's insider trading policy, (3) accepting employment with or
serving as a consultant, advisor or in any other capacity to an employer
that is in competition with or acting against the interests of the
Company, including employing or recruiting any present, former or future
employee of the Company, (4) disclosing or misusing any confidential
information or material concerning the Company, or (5) participating in
a hostile takeover attempt, then this Option shall terminate effective
on the date
on which Optionee enters into such activity, unless sooner terminated by
operation of another term or condition of this Option or the Plan, and
any option gain realized by Optionee from exercising all or a portion of
this Option shall be paid by Optionee to the Company. Optionee consents
and agrees to a deduction from any amounts the Company owes Optionee
from time to
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<PAGE> 49
time (including amounts owed to Optionee as wages or other compensation,
fringe benefits, or vacation pay, as well as any other amounts owed to
Optionee by the Company), to the extent of the amounts Optionee owes the
Company hereunder. Whether or not the Company elects to make any set-off
in whole or in part, if the Company does not recover by means of set-off
the full amount Optionee owes the Company, calculated as set forth
herein, Optionee agrees to pay immediately the unpaid balance to the
Company.
(f) In the event the Company is a party to a reorganization or
similar transaction with respect to which "pooling of interest"
treatment (within the meaning of APB 16) is, in the opinion of the
independent certified public accountants of the Company, available for
such transaction, the Company shall have the right, exercisable in its
sole and absolute discretion, to cancel this Option on the day
immediately preceding the effective date of the transaction and in
consideration thereof to pay to the Optionee an amount of cash equal to
the difference between the then fair market value of the Common Stock
that would have been issuable on exercise of the Options so canceled and
the exercise price for the purchase of such shares on exercise. For
purposes hereof, fair market value shall mean the closing price for such
stock as quoted on a registered national securities exchange or, if not
listed on a national exchange, the Nasdaq Stock Market ("Nasdaq"), over
the five-day trading period immediately preceding the date of
determination of fair market value, or, if not listed on such an
exchange or included on Nasdaq, shall mean the closing price (or, if no
closing price is available from sources deemed reliable by the Company,
the closing bid quotation) for such stock on the close of business on
the trading day last preceding the date of determination of fair market
value, or, if no such information is available or deemed reliable by the
Company, the amount determined by the board of directors of the Company
through any other means of determination available.
11. No Right of Employment. Nothing contained in this Option shall be
construed as conferring any right to continue or remain as an officer, director,
or employee of the Company or any subsidiary.
12. Restriction on Transfer. The Option and the shares of Common Stock
subject to this Option (collectively referred to as the "Securities") are
subject to registration under the Securities Act of 1933, as amended (the
"Securities Act"), and any applicable state securities statutes. Optionee
acknowledges that unless a registration statement with respect to the Securities
is filed and declared effective by the Securities and Exchange Commission and
the appropriate state governing agency, the Securities have or will be issued in
reliance on specific exemptions from such registration requirements for
transactions by an issuer not involving a public offering and specific
exemptions under state statutes. Any disposition of the Securities may, under
certain circumstances, be inconsistent with such exemptions. The Securities may
be offered for sale, sold, or otherwise transferred only if (i) registered under
the Securities Act, and in some cases, under the applicable state securities
acts, or, if not registered, (ii) only if such disposition is pursuant to an
exemption from such registration requirements and only after Optionee provides
an opinion of counsel or other evidence satisfactory to the Company to the
effect that registration is not required. In some states, specific conditions
must be met or approval of the securities regulatory authorities may be required
before any such offer or sale. The Company is under no obligation to register
the Securities with the Securities and Exchange Commission or any state agency.
If rule 144 is available (and no assurance is given that it will be), only
routine sales of the Common Stock in limited amounts can be made after one year
following the acquisition date of the Securities, as determined under rule
144(d), in accordance with the terms and conditions of rule 144. The Company is
under no obligation to make rule 144 available. In the event rule 144 is not
available, compliance with regulation A or some other disclosure exemption may
be required before Optionee can sell, transfer, or otherwise dispose of the
Securities without registration. The Company and its registrar and transfer
agent will maintain a stop transfer order against the transfer of the
Securities, and this
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<PAGE> 50
Option and any other certificate or agreement representing the Securities is
subject to the following legend:
THE SECURITIES REPRESENTED BY THIS OPTION AGREEMENT OR CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND ARE "RESTRICTED SECURITIES" WITHIN THE MEANING OF
RULE 144 PROMULGATED UNDER THE SECURITIES ACT. THE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD OR TRANSFERRED WITHOUT
COMPLYING WITH RULE 144 IN THE ABSENCE OF AN EFFECTIVE REGISTRATION OR
OTHER COMPLIANCE UNDER THE SECURITIES ACT.
The Company may refuse to transfer the Securities to any transferee who
does not furnish in writing to the Company the same representations and
warranties set forth in this paragraph and agree to the same conditions with
respect to such Securities as are set forth herein. The Company may further
refuse to transfer the Securities if certain circumstances are present
reasonably indicating that the proposed transferee's representations are not
accurate. In any event, the Company may refuse to consent to any transfer in the
absence of an opinion of legal counsel, satisfactory to and independent of
counsel for the Company, that such proposed transfer is consistent with the
above conditions and applicable securities laws.
13. Registration. The Company shall have no obligation to register the
Common Stock issuable on exercise of this Option. If no registration statement
is effective on the date of exercise of this Option, the shares of Common Stock
will not be issued unless and until there is available to the Company evidence,
including representations from Optionee, that such shares are being acquired for
investment and not for resale, on which the Company may reasonably rely as to
the availability of an exemption from registration in issuing such Common Stock.
14. No Right to Information. Optionee acknowledges and agrees that
neither the Company, its shareholders, nor its directors and officers, has any
duty or obligation to disclose to Optionee any material information regarding
the business of the Company or affecting the value of the Options or Common
Stock before or at the time of termination of the employment of Optionee by the
Company including, without limitation, any information concerning plans for the
Company to make a public offering of its securities or to be acquired by or
merged with or into another firm or entity.
15. Other Limitations and Restrictions. All Options granted hereunder
shall be deemed to contain such other limitations and restrictions as are
necessary to conform the Option to the requirements for "Incentive Stock
Options" as defined in section 422 of the Code, or any amendment or successor
statute of like tenor.
16. Payment in the Event of a Change in Control. In the event of a
"Change in Control" (as defined), the Option as to all of the shares granted
herein shall immediately become exercisable and the Company shall pay promptly
to Optionee an amount equal to the number of Optionee's unexercised Options,
whether or not vested (but excluding any Options previously exercised,
terminated, canceled, or expired), times the amount by which the "Fair Market
Value" (as defined) exceeds the exercise price of such Options. For purposes
hereof:
(a) "Change in Control" shall be deemed to have occurred if (i)
the Company shall be merged or consolidated into another corporation and
as a result of such merger or consolidation less than seventy-five
percent (75%) of the outstanding voting securities of the surviving or
resulting corporation shall be owned in the aggregate by the former
shareholders of
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<PAGE> 51
the Company as the same shall have existed prior to such merger or
consolidation, (ii) the Company shall sell, lease, exchange, or
otherwise transfer (in one transaction or a series of transactions) all
or substantially all of the assets of the Company to an entity that is
not a wholly owned subsidiary of the Company or a group of associated
purchasers, (iii) a person, within the meaning of Section 3(a)(9) or
Section 13(d)(3) (as in effect on the date hereof) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), shall become the
beneficial owner (within the meaning of rule 13d-3 of the Exchange Act
as in effect on the date hereof) of fifty percent (50%) or more of the
outstanding voting securities of the Company, or (iv) if as a result of
a merger, consolidation, sale of all or substantially all of the
Company's assets, a contested election, or any combination of the
foregoing, the persons who were directors of the Company immediately
prior thereto shall cease to constitute a majority of the board of
directors of the Company or any successor to the Company.
(b) "Fair Market Value" shall be the closing price for such
stock on the close of business on the day last preceding the occurrence
of the Change of Control as quoted on a registered national securities
exchange or, if not listed on such an exchange, the Nasdaq Stock Market
or, if not listed on such an exchange or included on the Nasdaq Stock
Market, the closing price (or, if no closing price is available from
sources deemed reliable by the Company, the closing bid quotation) for
such stock as determined by the Company through any other reliable means
of determination available on the close of business on the day last
preceding the date of such Change of Control.
17. Withholding. The Company may, in its sole discretion, satisfy any
obligation to withhold income and employment taxes resulting from the grant or
exercise of this Option (or any other event giving rise to such obligation) in
any of the following ways:
(a) The Company may require Optionee to deliver to the Company
at the time of exercise of this Option an amount of cash equal to such
withholding obligation.
(b) If authorized by the action of the board of directors of the
Company (or a duly appointed committee of the board) upon request by
Optionee, the Company may defer payment of the withholding obligation
for a reasonable period to allow Optionee an opportunity to sell shares
of Common Stock issuable on the exercise of this Option. In the event of
such deferral, the receipt by Optionee of shares of Common Stock on
exercise of this Option shall constitute a grant to the Company by
Optionee of a continuing security interest in such shares of Common
Stock and all proceeds thereof and the appointment of the President of
the Company, and any successor thereto, as attorney-in-fact to sell the
number of shares and collect the proceeds therefrom as may be necessary,
in the opinion of the Company, to satisfy all obligations for the
payment of such taxes.
(c) The Company may withhold from any compensation or other
amount owing to Optionee the amount (in cash, Common Stock, or other
property as the Company may determine) of the withholding obligation.
(d) If authorized by the action of the board of directors of the
Company (or a duly appointed committee of the board) upon request by
Optionee, the Company may withhold a number of shares of Common Stock
otherwise deliverable upon exercise of this Option having a value,
determined in accordance with the provisions of this Option, equivalent
to the amount of such withholding obligation.
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<PAGE> 52
In all events, delivery of shares of Common Stock issuable on exercise of this
Option shall be conditioned upon and subject to the satisfaction or making
provision for the satisfaction of the withholding obligation of the Company
resulting from the exercise of this Option. The Company is hereby further
authorized to take such other action as may be necessary, in the opinion of the
Company, to satisfy all obligations for the payment of such taxes. To the extent
that the holder of this Option is subject to the provisions of section 16(b) of
the Exchange Act, payment of the withholding and other trust fund requirements
of the foregoing methods shall be subject to the transaction qualifying for an
exemption from the provisions of section 16(b) under rule 16b-3 promulgated
pursuant to the Exchange Act or an amendment or successor rule of like tenor.
18. Validity and Construction. The validity and construction of this
Option shall be governed by the laws of the state of Utah.
19. Notice of Disposition. Optionee shall give notice in writing to the
Company of any disposition or transfer of this Option, whether by gift, sale,
exchange, or otherwise.
EXECUTED as of the date first above written.
The Company:
Tomax technologies, inc.
By:
----------------------------
Duly Authorized Officer
Attest:
---------------------------------
Jaye Olafson, Secretary
Accepted and Agreed:
---------------------------------
Optionee
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<PAGE> 53
EXHIBIT "A"
FORM OF EXERCISE
(TO BE SIGNED ONLY UPON EXERCISE OF OPTION)
TO: Tomax technologies, inc.
The undersigned, the owner of the attached Option, hereby irrevocable
elects to exercise the purchase rights represented by the Option for, and to
purchase thereunder, ____________ shares of Common Stock of Tomax technologies,
inc. Enclosed is payment in the amount of $____________, the exercise price of
the Common Stock to be acquired. Please have the certificate(s) registered in
the name of _______________________________, social security number
____________________, and delivered to the following address:
__________________________________. If this exercise does not include all of the
Common Stock covered by the attached Option, please deliver a new option of like
tenor for the balance of the Common Stock to the undersigned at the foregoing
address.
DATED this ____ day of ______________, 20____.
-------------------------------------------------
Signature (Signature must be guaranteed by a bank
or a registered broker-dealer)
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<PAGE> 54
TOMAX TECHNOLOGIES, INC.
INCENTIVE STOCK OPTION
(EXECUTIVE OFFICERS)
IT IS IMPORTANT THAT YOU RETAIN THIS DOCUMENT. THIS ORIGINAL INCENTIVE
STOCK OPTION MUST BE DELIVERED TO THE COMPANY ON EXERCISE OR TRANSFER OF
THE OPTION.
THIS INCENTIVE STOCK OPTION (this "Option") is granted effective (DATE),
by Tomax technologies, inc., a Utah corporation (the "Company"), under the terms
of the 2000 Stock Option and Award Plan (the "Plan"), to (NAME) ("Optionee").
1. Grant of Option. The Company hereby irrevocably grants to Optionee
the right and option to purchase all or any part of an aggregate of (NUMBER)
shares of common stock of the Company, no par value (the "Common Stock"), on the
terms and conditions hereinafter set forth and subject to the provisions of the
Plan.
2. Exercise Price. The exercise price of this Option shall be (PRICE)
per share of Common Stock, the fair market value of the Common Stock on the date
of grant as determined by the board of directors.
3. Term of Option. The right to exercise this Option shall vest in
installments commencing on the first day of the month following the effective
date of this Option and on the first day of the succeeding 47 months thereafter
to the extent of 1/48th of the total number of shares of Common Stock
purchasable under this Option, until this Option may be exercisable respecting
the full number of shares set forth in paragraph 1 above. Subject to the
foregoing and the other provisions of this Option and the Plan, this Option may
be exercised, in whole or in part, at any time prior to five years after the
date of this Option.
4. Shareholder's Rights. Optionee shall have the rights of a shareholder
only with respect to shares of Common Stock fully paid for by Optionee under
this Option.
5. Persons Entitled to Exercise. During Optionee's lifetime, this Option
can only be exercised by Optionee, and neither this Option nor any right
hereunder can be transferred other than by testamentary disposition or the laws
of descent and distribution. Neither this Option nor any right hereunder shall
be subject to lien, attachment, execution, or similar process. In the event of
any alienation, assignment, pledge, hypothecation, or other transfer of this
Option or any right hereunder or in the event of any levy, attachment,
execution, or similar process, this Option and all rights granted hereunder
shall be immediately null and void.
6. Qualification as Incentive Stock Option. This Option is intended to
qualify as an "Incentive Stock Option" under the provisions of the Internal
Revenue Code of 1986, as amended (the "Code"). Optionee acknowledges that in
order to be entitled to receive treatment as an Incentive Stock Option, the
holding and exercise of this Option and the Common Stock acquired pursuant to
this Option are subject to certain limitations and restrictions, including a
requirement that any Common Stock acquired hereunder be held by Optionee until
after the date that is both two years subsequent to the date of this Option and
one year subsequent to the date the Common Stock is acquired pursuant to the
exercise of this Option. Failure to hold the shares of Common Stock for the
above period will cause a "disqualifying disposition" of the Common Stock
resulting in the loss of Incentive Stock Option
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<PAGE> 55
treatment and the associated favorable tax benefits. As a result of the
disqualifying disposition the Company will also be subject to certain disclosure
requirements, and, therefore, Optionee agrees to notify the Company, in writing,
30 days prior to any disqualifying disposition.
7. Adjustment to Number of Shares of Common Stock. The number of shares
of Common Stock subject to this Option shall be adjusted to take into account
any stock split, stock dividend, or recapitalization of the Common Stock of the
Company as provided in the Plan.
8. Method of Exercise. This Option may be exercised, in accordance with
all of the terms and conditions set forth in this Option and the Plan, by
delivery of this Option, together with a notice of exercise, a form of which is
attached hereto as Exhibit "A" and incorporated herein by this reference,
indicating the number of shares which Optionee then elects to purchase and
payment made in accordance with the following:
(a) If Optionee elects to exercise the Option and make payment,
in whole or in part, for the shares of Common Stock in cash, Optionee
shall include with the notice of exercise a certified check or official
bank check payable to the order of the Company in the amount of the full
option price of the Common Stock being purchased for cash.
(b) If Optionee elects to exercise the Option and make payment,
in whole or in part, for the shares of Common Stock in installments,
Optionee shall include with the notice of exercise a certified check or
official bank check payable to the order of the Company in the amount of
any cash to be paid on exercise, and a promissory note, in form
satisfactory to the Company, executed by Optionee and evidencing the
obligation of Optionee to pay the balance of the exercise price on terms
and conditions acceptable to the board of directors of the Company at
the time of exercise of the Option.
(c) If Optionee elects to exercise the Option and make payment,
in whole or in part, for the shares of Common Stock by such other method
as approved by the board of directors of the Company at the time of
exercise, Optionee shall deliver to the Company such other forms of
payment approved by the board of directors of the Company.
As soon as practicable after receipt by the Company of such notice and
of payment in full of the option price of all the shares of Common Stock with
respect to which the Option has been exercised (including interest if payment is
made in installments), a certificate or certificates representing such shares of
Common Stock having been paid for shall be issued in the name of Optionee, or,
if Optionee shall so request in the notice exercising the Option, in the name of
Optionee and another person jointly, with right of survivorship, and shall be
delivered to Optionee. To the extent required, pursuant to paragraph 12, all
common stock shall be issued only upon receipt by the Company of Optionee's
representation that the shares are purchased for investment and not with a view
to distribution thereof. If this Option is not exercised with respect to all
Common Stock subject hereto, Optionee shall be entitled to receive a similar
Option of like tenor covering the number of shares of Common Stock with respect
to which this Option shall not have been exercised.
9. Availability of Shares. During the term of this Option, the Company
shall at all times keep reserved for issuance the number of shares of Common
Stock required to satisfy the Option.
10. Limitation on Exercise.
(a) If the board of directors of the Company, in its sole
discretion, shall determine that it is necessary or desirable to list,
register, or qualify the Common Stock under any state or
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<PAGE> 56
federal law, this Option may not be exercised, in whole or part, until
such listing, registration, or qualification shall have been obtained
free of any conditions not acceptable to the board of directors.
(b) The exercise price times the number of shares of Common
Stock first exercisable in any calendar year, together with the fair
market value of the shares of Common Stock subject to any other options
held by Optionee that are first exercisable in such year, shall not
exceed $100,000 (any Options first becoming exercisable in any calendar
year in excess of such amount shall not be treated as incentive stock
options).
(c) This Option shall terminate thirty days after Optionee
ceases to be an eligible employee of the Company as defined in the Code
and the Plan. In addition, no Option granted herein may be exercised
unless Optionee was, within thirty days of such exercise, and has been
since the date the Option was granted, an eligible employee of the
Company as specified in the applicable provisions of the Code, unless
Optionee ceased being an eligible employee as a result of death or
Optionee dies during the thirty-day period subsequent to his ceasing to
be an eligible employee; provided, the Option may be exercised by any
Optionee who ceases employment due to a disability as defined in the
Code, section 22(e)(3), or any amendment to that section or any
successor section of like tenor, within 12 months of such termination.
An authorized absence or leave approved by the board of directors shall
not be considered an interruption of employment for any purpose under
this Option.
(d) In the event that Optionee is terminated at any time for
cause pursuant to any written employment agreement between Optionee and
Optionee's employer or, if there is no such written employment
agreement, on the occurrence of any of the following: (i) Optionee's
conduct involving the business affairs of the employer constituting
common law fraud, conviction of a felony, embezzlement from the employer
or the Company, or other willful or malicious unlawful conduct of a
similar nature; (ii) any material breach by Optionee of the provisions
of the written employment policies or procedures of Optionee's employer
or the Company that are applicable to Optionee; or (iii) Optionee has
been grossly negligent in the performance of his duties or has
substantially failed to meet reasonable standards established by the
Company for the performance of his duties, any and all rights such
individual may have to the unexercised portion of this Option held at
the time of termination shall immediately terminate and be void.
(e) In the event, at any time within (i) the term of this
Option, (ii) three years after termination of Optionee's employment with
the Company, or (iii) three years after exercise of any portion of this
Option by Optionee, whichever is the latest, Optionee engages in any
activity in competition with any activity of the Company, or inimical,
contrary or harmful to the interests of the Company, including, but not
limited to, (1) conduct related to Optionee's employment for which
either criminal or civil penalties against Optionee may be sought, (2)
violation of Company policies, including, without limitation, the
Company's insider trading policy, (3) accepting employment with or
serving as a consultant, advisor or in any other capacity to an employer
that is in competition with or acting against the interests of the
Company, including employing or recruiting any present, former or future
employee of the Company, (4) disclosing or misusing any confidential
information or material concerning the Company, or (5) participating in
a hostile takeover attempt, then this Option shall terminate effective
on the date on which Optionee enters into such activity, unless sooner
terminated by operation of another term or condition of this Option or
the Plan, and any option gain realized by Optionee from exercising all
or a portion of this Option shall be paid by Optionee to the Company.
Optionee consents and agrees to a deduction from any amounts the Company
owes Optionee from time to
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<PAGE> 57
time (including amounts owed to Optionee as wages or other compensation,
fringe benefits, or vacation pay, as well as any other amounts owed to
Optionee by the Company), to the extent of the amounts Optionee owes the
Company hereunder. Whether or not the Company elects to make any set-off
in whole or in part, if the Company does not recover by means of set-off
the full amount Optionee owes the Company, calculated as set forth
herein, Optionee agrees to pay immediately the unpaid balance to the
Company.
(f) In the event the Company is a party to a reorganization or
similar transaction with respect to which "pooling of interest"
treatment (within the meaning of APB 16) is, in the opinion of the
independent certified public accountants of the Company, available for
such transaction, the Company shall have the right, exercisable in its
sole and absolute discretion, to cancel this Option on the day
immediately preceding the effective date of the transaction and in
consideration thereof to pay to the Optionee an amount of cash equal to
the difference between the then fair market value of the Common Stock
that would have been issuable on exercise of the Options so canceled and
the exercise price for the purchase of such shares on exercise. For
purposes hereof, fair market value shall mean the closing price for such
stock as quoted on a registered national securities exchange or, if not
listed on a national exchange, the Nasdaq Stock Market ("Nasdaq"), over
the five-day trading period immediately preceding the date of
determination of fair market value, or, if not listed on such an
exchange or included on Nasdaq, shall mean the closing price (or, if no
closing price is available from sources deemed reliable by the Company,
the closing bid quotation) for such stock on the close of business on
the trading day last preceding the date of determination of fair market
value, or, if no such information is available or deemed reliable by the
Company, the amount determined by the board of directors of the Company
through any other means of determination available.
11. No Right of Employment. Nothing contained in this Option shall be
construed as conferring any right to continue or remain as an officer, director,
or employee of the Company or any subsidiary.
12. Restriction on Transfer. The Option and the shares of Common Stock
subject to this Option (collectively referred to as the "Securities") are
subject to registration under the Securities Act of 1933, as amended (the
"Securities Act"), and any applicable state securities statutes. Optionee
acknowledges that unless a registration statement with respect to the Securities
is filed and declared effective by the Securities and Exchange Commission and
the appropriate state governing agency, the Securities have or will be issued in
reliance on specific exemptions from such registration requirements for
transactions by an issuer not involving a public offering and specific
exemptions under state statutes. Any disposition of the Securities may, under
certain circumstances, be inconsistent with such exemptions. The Securities may
be offered for sale, sold, or otherwise transferred only if (i) registered under
the Securities Act, and in some cases, under the applicable state securities
acts, or, if not registered, (ii) only if such disposition is pursuant to an
exemption from such registration requirements and only after Optionee provides
an opinion of counsel or other evidence satisfactory to the Company to the
effect that registration is not required. In some states, specific conditions
must be met or approval of the securities regulatory authorities may be required
before any such offer or sale. The Company is under no obligation to register
the Securities with the Securities and Exchange Commission or any state agency.
If rule 144 is available (and no assurance is given that it will be), only
routine sales of the Common Stock in limited amounts can be made after one year
following the acquisition date of the Securities, as determined under rule
144(d), in accordance with the terms and conditions of rule 144. The Company is
under no obligation to make rule 144 available. In the event rule 144 is not
available, compliance with regulation A or some other disclosure exemption may
be required before Optionee can sell, transfer, or otherwise dispose of the
Securities without registration. The Company and its registrar and transfer
agent will maintain a stop transfer order against the transfer of the
Securities, and this
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<PAGE> 58
Option and any other certificate or agreement representing the Securities is
subject to the following legend:
THE SECURITIES REPRESENTED BY THIS OPTION AGREEMENT OR CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND ARE "RESTRICTED SECURITIES" WITHIN THE MEANING OF
RULE 144 PROMULGATED UNDER THE SECURITIES ACT. THE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD OR TRANSFERRED WITHOUT
COMPLYING WITH RULE 144 IN THE ABSENCE OF AN EFFECTIVE REGISTRATION OR
OTHER COMPLIANCE UNDER THE SECURITIES ACT.
The Company may refuse to transfer the Securities to any transferee who
does not furnish in writing to the Company the same representations and
warranties set forth in this paragraph and agree to the same conditions with
respect to such Securities as are set forth herein. The Company may further
refuse to transfer the Securities if certain circumstances are present
reasonably indicating that the proposed transferee's representations are not
accurate. In any event, the Company may refuse to consent to any transfer in the
absence of an opinion of legal counsel, satisfactory to and independent of
counsel for the Company, that such proposed transfer is consistent with the
above conditions and applicable securities laws.
13. Registration. The Company shall have no obligation to register the
Common Stock issuable on exercise of this Option. If no registration statement
is effective on the date of exercise of this Option, the shares of Common Stock
will not be issued unless and until there is available to the Company evidence,
including representations from Optionee, that such shares are being acquired for
investment and not for resale, on which the Company may reasonably rely as to
the availability of an exemption from registration in issuing such Common Stock.
14. No Right to Information. Optionee acknowledges and agrees that
neither the Company, its shareholders, nor its directors and officers, has any
duty or obligation to disclose to Optionee any material information regarding
the business of the Company or affecting the value of the Options or Common
Stock before or at the time of termination of the employment of Optionee by the
Company including, without limitation, any information concerning plans for the
Company to make a public offering of its securities or to be acquired by or
merged with or into another firm or entity.
15. Other Limitations and Restrictions. All Options granted hereunder
shall be deemed to contain such other limitations and restrictions as are
necessary to conform the Option to the requirements for "Incentive Stock
Options" as defined in section 422 of the Code, or any amendment or successor
statute of like tenor.
16. Payment in the Event of a Change in Control. In the event of a
"Change in Control" (as defined), the Option as to all of the shares granted
herein shall immediately become exercisable and the Company shall pay promptly
to Optionee an amount equal to the number of Optionee's unexercised Options,
whether or not vested (but excluding any Options previously exercised,
terminated, canceled, or expired), times the amount by which the "Fair Market
Value" (as defined) exceeds the exercise price of such Options. For purposes
hereof:
(a) "Change in Control" shall be deemed to have occurred if (i)
the Company shall be merged or consolidated into another corporation and
as a result of such merger or consolidation less than seventy-five
percent (75%) of the outstanding voting securities of the surviving or
resulting corporation shall be owned in the aggregate by the former
shareholders of
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<PAGE> 59
the Company as the same shall have existed prior to such merger or
consolidation, (ii) the Company shall sell, lease, exchange, or
otherwise transfer (in one transaction or a series of transactions) all
or substantially all of the assets of the Company to an entity that is
not a wholly owned subsidiary of the Company or a group of associated
purchasers, (iii) a person, within the meaning of Section 3(a)(9) or
Section 13(d)(3) (as in effect on the date hereof) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), shall become the
beneficial owner (within the meaning of rule 13d-3 of the Exchange Act
as in effect on the date hereof) of fifty percent (50%) or more of the
outstanding voting securities of the Company, or (iv) if as a result of
a merger, consolidation, sale of all or substantially all of the
Company's assets, a contested election, or any combination of the
foregoing, the persons who were directors of the Company immediately
prior thereto shall cease to constitute a majority of the board of
directors of the Company or any successor to the Company.
(b) "Fair Market Value" shall be the closing price for such
stock on the close of business on the day last preceding the occurrence
of the Change of Control as quoted on a registered national securities
exchange or, if not listed on such an exchange, the Nasdaq Stock Market
or, if not listed on such an exchange or included on the Nasdaq Stock
Market, the closing price (or, if no closing price is available from
sources deemed reliable by the Company, the closing bid quotation) for
such stock as determined by the Company through any other reliable means
of determination available on the close of business on the day last
preceding the date of such Change of Control.
17. Withholding. The Company may, in its sole discretion, satisfy any
obligation to withhold income and employment taxes resulting from the grant or
exercise of this Option (or any other event giving rise to such obligation) in
any of the following ways:
(a) The Company may require Optionee to deliver to the Company
at the time of exercise of this Option an amount of cash equal to such
withholding obligation.
(b) If authorized by the action of the board of directors of the
Company (or a duly appointed committee of the board) upon request by
Optionee, the Company may defer payment of the withholding obligation
for a reasonable period to allow Optionee an opportunity to sell shares
of Common Stock issuable on the exercise of this Option. In the event of
such deferral, the receipt by Optionee of shares of Common Stock on
exercise of this Option shall constitute a grant to the Company by
Optionee of a continuing security interest in such shares of Common
Stock and all proceeds thereof and the appointment of the President of
the Company, and any successor thereto, as attorney-in-fact to sell the
number of shares and collect the proceeds therefrom as may be necessary,
in the opinion of the Company, to satisfy all obligations for the
payment of such taxes.
(c) The Company may withhold from any compensation or other
amount owing to Optionee the amount (in cash, Common Stock, or other
property as the Company may determine) of the withholding obligation.
(d) If authorized by the action of the board of directors of the
Company (or a duly appointed committee of the board) upon request by
Optionee, the Company may withhold a number of shares of Common Stock
otherwise deliverable upon exercise of this Option having a value,
determined in accordance with the provisions of this Option, equivalent
to the amount of such withholding obligation.
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<PAGE> 60
In all events, delivery of shares of Common Stock issuable on exercise of this
Option shall be conditioned upon and subject to the satisfaction or making
provision for the satisfaction of the withholding obligation of the Company
resulting from the exercise of this Option. The Company is hereby further
authorized to take such other action as may be necessary, in the opinion of the
Company, to satisfy all obligations for the payment of such taxes. To the extent
that the holder of this Option is subject to the provisions of section 16(b) of
the Exchange Act, payment of the withholding and other trust fund requirements
of the foregoing methods shall be subject to the transaction qualifying for an
exemption from the provisions of section 16(b) under rule 16b-3 promulgated
pursuant to the Exchange Act or an amendment or successor rule of like tenor.
18. Validity and Construction. The validity and construction of this
Option shall be governed by the laws of the state of Utah.
19. Notice of Disposition. Optionee shall give notice in writing to the
Company of any disposition or transfer of this Option, whether by gift, sale,
exchange, or otherwise.
EXECUTED as of the date first above written.
The Company:
Tomax technologies, inc.
By:
----------------------------
Duly Authorized Officer
Attest:
-------------------------------
Jaye Olafson, Secretary
Accepted and Agreed:
-------------------------------
Optionee
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<PAGE> 61
EXHIBIT "A"
FORM OF EXERCISE
(TO BE SIGNED ONLY UPON EXERCISE OF OPTION)
TO: Tomax technologies, inc.
The undersigned, the owner of the attached Option, hereby irrevocable
elects to exercise the purchase rights represented by the Option for, and to
purchase thereunder, ____________ shares of Common Stock of Tomax technologies,
inc. Enclosed is payment in the amount of $____________, the exercise price of
the Common Stock to be acquired. Please have the certificate(s) registered in
the name of _______________________________, social security number
____________________, and delivered to the following address:
__________________________________. If this exercise does not include all of the
Common Stock covered by the attached Option, please deliver a new option of like
tenor for the balance of the Common Stock to the undersigned at the foregoing
address.
DATED this ____ day of ______________, 20____.
-------------------------------------------------
Signature (Signature must be guaranteed by a bank
or a registered broker-dealer)
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<PAGE> 62
TOMAX TECHNOLOGIES, INC.
INCENTIVE STOCK OPTION
(EXECUTIVE OFFICERS)
IT IS IMPORTANT THAT YOU RETAIN THIS DOCUMENT. THIS ORIGINAL INCENTIVE
STOCK OPTION MUST BE DELIVERED TO THE COMPANY ON EXERCISE OR TRANSFER OF
THE OPTION.
THIS INCENTIVE STOCK OPTION (this "Option") is granted effective (DATE),
by Tomax technologies, inc., a Utah corporation (the "Company"), under the terms
of the 2000 Stock Option and Award Plan (the "Plan"), to (NAME) ("Optionee").
1. Grant of Option. The Company hereby irrevocably grants to Optionee
the right and option to purchase all or any part of an aggregate of (NUMBER)
shares of common stock of the Company, no par value (the "Common Stock"), on the
terms and conditions hereinafter set forth and subject to the provisions of the
Plan.
2. Exercise Price. The exercise price of this Option shall be (PRICE)
per share of Common Stock, the fair market value of the Common Stock on the date
of grant as determined by the board of directors.
3. Term of Option. The right to exercise this Option shall vest in
installments commencing on the first day of the month following the effective
date of this Option and on the first day of the succeeding 47 months thereafter
to the extent of 1/48th of the total number of shares of Common Stock
purchasable under this Option, until this Option may be exercisable respecting
the full number of shares set forth in paragraph 1 above. Subject to the
foregoing and the other provisions of this Option and the Plan, this Option may
be exercised, in whole or in part, at any time prior to five years after the
date of this Option.
4. Shareholder's Rights. Optionee shall have the rights of a shareholder
only with respect to shares of Common Stock fully paid for by Optionee under
this Option.
5. Persons Entitled to Exercise. During Optionee's lifetime, this Option
can only be exercised by Optionee, and neither this Option nor any right
hereunder can be transferred other than by testamentary disposition or the laws
of descent and distribution. Neither this Option nor any right hereunder shall
be subject to lien, attachment, execution, or similar process. In the event of
any alienation, assignment, pledge, hypothecation, or other transfer of this
Option or any right hereunder or in the event of any levy, attachment,
execution, or similar process, this Option and all rights granted hereunder
shall be immediately null and void.
6. Qualification as Incentive Stock Option. This Option is intended to
qualify as an "Incentive Stock Option" under the provisions of the Internal
Revenue Code of 1986, as amended (the "Code"). Optionee acknowledges that in
order to be entitled to receive treatment as an Incentive Stock Option, the
holding and exercise of this Option and the Common Stock acquired pursuant to
this Option are subject to certain limitations and restrictions, including a
requirement that any Common Stock acquired hereunder be held by Optionee until
after the date that is both two years subsequent to the date of this Option and
one year subsequent to the date the Common Stock is acquired pursuant to the
exercise of this Option. Failure to hold the shares of Common Stock for the
above period will cause a "disqualifying disposition" of the Common Stock
resulting in the loss of Incentive Stock Option
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<PAGE> 63
treatment and the associated favorable tax benefits. As a result of the
disqualifying disposition the Company will also be subject to certain disclosure
requirements, and, therefore, Optionee agrees to notify the Company, in writing,
30 days prior to any disqualifying disposition.
7. Adjustment to Number of Shares of Common Stock. The number of shares
of Common Stock subject to this Option shall be adjusted to take into account
any stock split, stock dividend, or recapitalization of the Common Stock of the
Company as provided in the Plan.
8. Method of Exercise. This Option may be exercised, in accordance with
all of the terms and conditions set forth in this Option and the Plan, by
delivery of this Option, together with a notice of exercise, a form of which is
attached hereto as Exhibit "A" and incorporated herein by this reference,
indicating the number of shares which Optionee then elects to purchase and
payment made in accordance with the following:
(a) If Optionee elects to exercise the Option and make payment,
in whole or in part, for the shares of Common Stock in cash, Optionee
shall include with the notice of exercise a certified check or official
bank check payable to the order of the Company in the amount of the full
option price of the Common Stock being purchased for cash.
(b) If Optionee elects to exercise the Option and make payment,
in whole or in part, for the shares of Common Stock in installments,
Optionee shall include with the notice of exercise a certified check or
official bank check payable to the order of the Company in the amount of
any cash to be paid on exercise, and a promissory note, in form
satisfactory to the Company, executed by Optionee and evidencing the
obligation of Optionee to pay the balance of the exercise price on terms
and conditions acceptable to the board of directors of the Company at
the time of exercise of the Option.
(c) If Optionee elects to exercise the Option and make payment,
in whole or in part, for the shares of Common Stock by such other method
as approved by the board of directors of the Company at the time of
exercise, Optionee shall deliver to the Company such other forms of
payment approved by the board of directors of the Company.
As soon as practicable after receipt by the Company of such notice and
of payment in full of the option price of all the shares of Common Stock with
respect to which the Option has been exercised (including interest if payment is
made in installments), a certificate or certificates representing such shares of
Common Stock having been paid for shall be issued in the name of Optionee, or,
if Optionee shall so request in the notice exercising the Option, in the name of
Optionee and another person jointly, with right of survivorship, and shall be
delivered to Optionee. To the extent required, pursuant to paragraph 12, all
common stock shall be issued only upon receipt by the Company of Optionee's
representation that the shares are purchased for investment and not with a view
to distribution thereof. If this Option is not exercised with respect to all
Common Stock subject hereto, Optionee shall be entitled to receive a similar
Option of like tenor covering the number of shares of Common Stock with respect
to which this Option shall not have been exercised.
9. Availability of Shares. During the term of this Option, the Company
shall at all times keep reserved for issuance the number of shares of Common
Stock required to satisfy the Option.
10. Limitation on Exercise.
(a) If the board of directors of the Company, in its sole
discretion, shall determine that it is necessary or desirable to list,
register, or qualify the Common Stock under any state or
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federal law, this Option may not be exercised, in whole or part, until
such listing, registration, or qualification shall have been obtained
free of any conditions not acceptable to the board of directors.
(b) The exercise price times the number of shares of Common
Stock first exercisable in any calendar year, together with the fair
market value of the shares of Common Stock subject to any other options
held by Optionee that are first exercisable in such year, shall not
exceed $100,000 (any Options first becoming exercisable in any calendar
year in excess of such amount shall not be treated as incentive stock
options).
(c) This Option shall terminate thirty days after Optionee
ceases to be an eligible employee of the Company as defined in the Code
and the Plan. In addition, no Option granted herein may be exercised
unless Optionee was, within thirty days of such exercise, and has been
since the date the Option was granted, an eligible employee of the
Company as specified in the applicable provisions of the Code, unless
Optionee ceased being an eligible employee as a result of death or
Optionee dies during the thirty-day period subsequent to his ceasing to
be an eligible employee; provided, the Option may be exercised by any
Optionee who ceases employment due to a disability as defined in the
Code, section 22(e)(3), or any amendment to that section or any
successor section of like tenor, within 12 months of such termination.
An authorized absence or leave approved by the board of directors shall
not be considered an interruption of employment for any purpose under
this Option.
(d) In the event that Optionee is terminated at any time for
cause pursuant to any written employment agreement between Optionee and
Optionee's employer or, if there is no such written employment
agreement, on the occurrence of any of the following: (i) Optionee's
conduct involving the business affairs of the employer constituting
common law fraud, conviction of a felony, embezzlement from the employer
or the Company, or other willful or malicious unlawful conduct of a
similar nature; (ii) any material breach by Optionee of the provisions
of the written employment policies or procedures of Optionee's employer
or the Company that are applicable to Optionee; or (iii) Optionee has
been grossly negligent in the performance of his duties or has
substantially failed to meet reasonable standards established by the
Company for the performance of his duties, any and all rights such
individual may have to the unexercised portion of this Option held at
the time of termination shall immediately terminate and be void.
(e) In the event, at any time within (i) the term of this
Option, (ii) three years after termination of Optionee's employment with
the Company, or (iii) three years after exercise of any portion of this
Option by Optionee, whichever is the latest, Optionee engages in any
activity in competition with any activity of the Company, or inimical,
contrary or harmful to the interests of the Company, including, but not
limited to, (1) conduct related to Optionee's employment for which
either criminal or civil penalties against Optionee may be sought, (2)
violation of Company policies, including, without limitation, the
Company's insider trading policy, (3) accepting employment with or
serving as a consultant, advisor or in any other capacity to an employer
that is in competition with or acting against the interests of the
Company, including employing or recruiting any present, former or future
employee of the Company, (4) disclosing or misusing any confidential
information or material concerning the Company, or (5) participating in
a hostile takeover attempt, then this Option shall terminate effective
on the date on which Optionee enters into such activity, unless sooner
terminated by operation of another term or condition of this Option or
the Plan, and any option gain realized by Optionee from exercising all
or a portion of this Option shall be paid by Optionee to the Company.
Optionee consents and agrees to a deduction from any amounts the Company
owes Optionee from time to
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time (including amounts owed to Optionee as wages or other compensation,
fringe benefits, or vacation pay, as well as any other amounts owed to
Optionee by the Company), to the extent of the amounts Optionee owes the
Company hereunder. Whether or not the Company elects to make any set-off
in whole or in part, if the Company does not recover by means of set-off
the full amount Optionee owes the Company, calculated as set forth
herein, Optionee agrees to pay immediately the unpaid balance to the
Company.
(f) In the event the Company is a party to a reorganization or
similar transaction with respect to which "pooling of interest"
treatment (within the meaning of APB 16) is, in the opinion of the
independent certified public accountants of the Company, available for
such transaction, the Company shall have the right, exercisable in its
sole and absolute discretion, to cancel this Option on the day
immediately preceding the effective date of the transaction and in
consideration thereof to pay to the Optionee an amount of cash equal to
the difference between the then fair market value of the Common Stock
that would have been issuable on exercise of the Options so canceled and
the exercise price for the purchase of such shares on exercise. For
purposes hereof, fair market value shall mean the closing price for such
stock as quoted on a registered national securities exchange or, if not
listed on a national exchange, the Nasdaq Stock Market ("Nasdaq"), over
the five-day trading period immediately preceding the date of
determination of fair market value, or, if not listed on such an
exchange or included on Nasdaq, shall mean the closing price (or, if no
closing price is available from sources deemed reliable by the Company,
the closing bid quotation) for such stock on the close of business on
the trading day last preceding the date of determination of fair market
value, or, if no such information is available or deemed reliable by the
Company, the amount determined by the board of directors of the Company
through any other means of determination available.
11. No Right of Employment. Nothing contained in this Option shall be
construed as conferring any right to continue or remain as an officer, director,
or employee of the Company or any subsidiary.
12. Restriction on Transfer. The Option and the shares of Common Stock
subject to this Option (collectively referred to as the "Securities") are
subject to registration under the Securities Act of 1933, as amended (the
"Securities Act"), and any applicable state securities statutes. Optionee
acknowledges that unless a registration statement with respect to the Securities
is filed and declared effective by the Securities and Exchange Commission and
the appropriate state governing agency, the Securities have or will be issued in
reliance on specific exemptions from such registration requirements for
transactions by an issuer not involving a public offering and specific
exemptions under state statutes. Any disposition of the Securities may, under
certain circumstances, be inconsistent with such exemptions. The Securities may
be offered for sale, sold, or otherwise transferred only if (i) registered under
the Securities Act, and in some cases, under the applicable state securities
acts, or, if not registered, (ii) only if such disposition is pursuant to an
exemption from such registration requirements and only after Optionee provides
an opinion of counsel or other evidence satisfactory to the Company to the
effect that registration is not required. In some states, specific conditions
must be met or approval of the securities regulatory authorities may be required
before any such offer or sale. The Company is under no obligation to register
the Securities with the Securities and Exchange Commission or any state agency.
If rule 144 is available (and no assurance is given that it will be), only
routine sales of the Common Stock in limited amounts can be made after one year
following the acquisition date of the Securities, as determined under rule
144(d), in accordance with the terms and conditions of rule 144. The Company is
under no obligation to make rule 144 available. In the event rule 144 is not
available, compliance with regulation A or some other disclosure exemption may
be required before Optionee can sell, transfer, or otherwise dispose of the
Securities without registration. The Company and its registrar and transfer
agent will maintain a stop transfer order against the transfer of the
Securities, and this
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Option and any other certificate or agreement representing the Securities is
subject to the following legend:
THE SECURITIES REPRESENTED BY THIS OPTION AGREEMENT OR CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND ARE "RESTRICTED SECURITIES" WITHIN THE MEANING OF
RULE 144 PROMULGATED UNDER THE SECURITIES ACT. THE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD OR TRANSFERRED WITHOUT
COMPLYING WITH RULE 144 IN THE ABSENCE OF AN EFFECTIVE REGISTRATION OR
OTHER COMPLIANCE UNDER THE SECURITIES ACT.
The Company may refuse to transfer the Securities to any transferee who
does not furnish in writing to the Company the same representations and
warranties set forth in this paragraph and agree to the same conditions with
respect to such Securities as are set forth herein. The Company may further
refuse to transfer the Securities if certain circumstances are present
reasonably indicating that the proposed transferee's representations are not
accurate. In any event, the Company may refuse to consent to any transfer in the
absence of an opinion of legal counsel, satisfactory to and independent of
counsel for the Company, that such proposed transfer is consistent with the
above conditions and applicable securities laws.
13. Registration. The Company shall have no obligation to register the
Common Stock issuable on exercise of this Option. If no registration statement
is effective on the date of exercise of this Option, the shares of Common Stock
will not be issued unless and until there is available to the Company evidence,
including representations from Optionee, that such shares are being acquired for
investment and not for resale, on which the Company may reasonably rely as to
the availability of an exemption from registration in issuing such Common Stock.
14. No Right to Information. Optionee acknowledges and agrees that
neither the Company, its shareholders, nor its directors and officers, has any
duty or obligation to disclose to Optionee any material information regarding
the business of the Company or affecting the value of the Options or Common
Stock before or at the time of termination of the employment of Optionee by the
Company including, without limitation, any information concerning plans for the
Company to make a public offering of its securities or to be acquired by or
merged with or into another firm or entity.
15. Other Limitations and Restrictions. All Options granted hereunder
shall be deemed to contain such other limitations and restrictions as are
necessary to conform the Option to the requirements for "Incentive Stock
Options" as defined in section 422 of the Code, or any amendment or successor
statute of like tenor.
16. Payment in the Event of a Change in Control. In the event of a
"Change in Control" (as defined), the Option as to all of the shares granted
herein shall immediately become exercisable and the Company shall pay promptly
to Optionee an amount equal to the number of Optionee's unexercised Options,
whether or not vested (but excluding any Options previously exercised,
terminated, canceled, or expired), times the amount by which the "Fair Market
Value" (as defined) exceeds the exercise price of such Options. For purposes
hereof:
(a) "Change in Control" shall be deemed to have occurred if (i)
the Company shall be merged or consolidated into another corporation and
as a result of such merger or consolidation less than seventy-five
percent (75%) of the outstanding voting securities of the surviving or
resulting corporation shall be owned in the aggregate by the former
shareholders of
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the Company as the same shall have existed prior to such merger or
consolidation, (ii) the Company shall sell, lease, exchange, or
otherwise transfer (in one transaction or a series of transactions) all
or substantially all of the assets of the Company to an entity that is
not a wholly owned subsidiary of the Company or a group of associated
purchasers, (iii) a person, within the meaning of Section 3(a)(9) or
Section 13(d)(3) (as in effect on the date hereof) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), shall become the
beneficial owner (within the meaning of rule 13d-3 of the Exchange Act
as in effect on the date hereof) of fifty percent (50%) or more of the
outstanding voting securities of the Company, or (iv) if as a result of
a merger, consolidation, sale of all or substantially all of the
Company's assets, a contested election, or any combination of the
foregoing, the persons who were directors of the Company immediately
prior thereto shall cease to constitute a majority of the board of
directors of the Company or any successor to the Company.
(b) "Fair Market Value" shall be the closing price for such
stock on the close of business on the day last preceding the occurrence
of the Change of Control as quoted on a registered national securities
exchange or, if not listed on such an exchange, the Nasdaq Stock Market
or, if not listed on such an exchange or included on the Nasdaq Stock
Market, the closing price (or, if no closing price is available from
sources deemed reliable by the Company, the closing bid quotation) for
such stock as determined by the Company through any other reliable means
of determination available on the close of business on the day last
preceding the date of such Change of Control.
17. Withholding. The Company may, in its sole discretion, satisfy any
obligation to withhold income and employment taxes resulting from the grant or
exercise of this Option (or any other event giving rise to such obligation) in
any of the following ways:
(a) The Company may require Optionee to deliver to the Company
at the time of exercise of this Option an amount of cash equal to such
withholding obligation.
(b) If authorized by the action of the board of directors of the
Company (or a duly appointed committee of the board) upon request by
Optionee, the Company may defer payment of the withholding obligation
for a reasonable period to allow Optionee an opportunity to sell shares
of Common Stock issuable on the exercise of this Option. In the event of
such deferral, the receipt by Optionee of shares of Common Stock on
exercise of this Option shall constitute a grant to the Company by
Optionee of a continuing security interest in such shares of Common
Stock and all proceeds thereof and the appointment of the President of
the Company, and any successor thereto, as attorney-in-fact to sell the
number of shares and collect the proceeds therefrom as may be necessary,
in the opinion of the Company, to satisfy all obligations for the
payment of such taxes.
(c) The Company may withhold from any compensation or other
amount owing to Optionee the amount (in cash, Common Stock, or other
property as the Company may determine) of the withholding obligation.
(d) If authorized by the action of the board of directors of the
Company (or a duly appointed committee of the board) upon request by
Optionee, the Company may withhold a number of shares of Common Stock
otherwise deliverable upon exercise of this Option having a value,
determined in accordance with the provisions of this Option, equivalent
to the amount of such withholding obligation.
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<PAGE> 68
In all events, delivery of shares of Common Stock issuable on exercise of this
Option shall be conditioned upon and subject to the satisfaction or making
provision for the satisfaction of the withholding obligation of the Company
resulting from the exercise of this Option. The Company is hereby further
authorized to take such other action as may be necessary, in the opinion of the
Company, to satisfy all obligations for the payment of such taxes. To the extent
that the holder of this Option is subject to the provisions of section 16(b) of
the Exchange Act, payment of the withholding and other trust fund requirements
of the foregoing methods shall be subject to the transaction qualifying for an
exemption from the provisions of section 16(b) under rule 16b-3 promulgated
pursuant to the Exchange Act or an amendment or successor rule of like tenor.
18. Validity and Construction. The validity and construction of this
Option shall be governed by the laws of the state of Utah.
19. Notice of Disposition. Optionee shall give notice in writing to the
Company of any disposition or transfer of this Option, whether by gift, sale,
exchange, or otherwise.
EXECUTED as of the date first above written.
The Company:
Tomax technologies, inc.
By:
----------------------------
Duly Authorized Officer
Attest:
------------------------------
Jaye Olafson, Secretary
Accepted and Agreed:
------------------------------
Optionee
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<PAGE> 69
EXHIBIT "A"
FORM OF EXERCISE
(TO BE SIGNED ONLY UPON EXERCISE OF OPTION)
TO: Tomax technologies, inc.
The undersigned, the owner of the attached Option, hereby irrevocable
elects to exercise the purchase rights represented by the Option for, and to
purchase thereunder, ____________ shares of Common Stock of Tomax technologies,
inc. Enclosed is payment in the amount of $____________, the exercise price of
the Common Stock to be acquired. Please have the certificate(s) registered in
the name of _______________________________, social security number
____________________, and delivered to the following address:
__________________________________. If this exercise does not include all of the
Common Stock covered by the attached Option, please deliver a new option of like
tenor for the balance of the Common Stock to the undersigned at the foregoing
address.
DATED this ____ day of ______________, 20____.
-------------------------------------------------
Signature (Signature must be guaranteed by a bank
or a registered broker-dealer)
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