SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CALDERA CORPORATION
(Exact name of registrant as specified in its charter)
FLORIDA
(State or other jurisdiction of incorporation or organization)
59-3243555
(I.R.S. Employer Identification No.)
3156 EAST OLD MILL CIRCLE #100, SALT LAKE CITY, UTAH 84121
(Address of principal executive offices, including zip code)
1997 NON-QUALIFIED STOCK OPTION PLAN
(Full title of the plans)
RADD C. BERRETT, PRESIDENT
3156 EAST OLD MILL CIRCLE #100, SALT LAKE CITY, UTAH 84121
(Name, address, including zip code, of agent for service)
(801) 947-9007
Telephone number, including area code, of agent for service
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered(2) Registered Share Price Fee
Common Stock 4,000,000 $.0025(1) $10,000 $3.00
$.001 par value
</TABLE>
(1)This calculation is made solely for the purposes of determining the
registration fee pursuant to the provisions of Rule 457 under the
Securities Act of 1933 and, is calculated on the basis of the estimated
price at which the options may be exercised.
(2)In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the Plan described herein.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") are hereby incorporated herein by
reference:
1. The Company's Annual Report on Form 10-KSB for the year ended
December 31, 1997, as amended.
2. All reports filed by the Company with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act of 1934, as amended, since the
end of the fiscal year ended December 31, 1997.
3. The description of the Common Stock contained in the Company's
registration statement filed under the Securities Exchange Act of 1934,
including any amendment or report filed for the purpose of updating such
description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act prior
to the filing of a post-effective amendment which indicates that all
securities covered by this Registration Statement have been sold or which
deregisters all such securities then remaining unsold shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of
the filing of such reports and documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 607.0850 of the Florida Business Corporation Act expressly
authorizes a Florida corporation to indemnify its directors, officers,
employees, and agents against claims or liabilities arising out of such
persons' conduct in such capacities if they acted in good faith and in a
manner they reasonably believed to be in or not opposed to the best
interests of the Company. In general, these provisions provide for
indemnification in instances when such persons acted in good faith and in a
manner they reasonably believed to be in or not opposed to the best
interests of the Company.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits. The following exhibits are attached to this
Registration Statement:
<TABLE>
<CAPTION>
SEC
Reference
Exhibit No. No. Description of Exhibit
<C> <C> <C>
4.01 4 1997 Non-Qualified Stock Option Plan, as amended
4.02 4 Form of option certificate
5.01 5 & 3 Opinion of Ronald N. Vance, including consent of
Mr. Vance, with respect to the legality of the
issuance of securities being issued
23.01 23 Consent of Independent Certified Public
Accountants
</TABLE>
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement to include
any material information with respect to the plan of distribution.
(2) For determining liability under the Securities Act, to treat each
post-effective amendment as a new registration statement of the securities
being offered, and the offering of the securities at that time to be the
initial BONA FIDE offering.
(3) To file a post-effective amendment to remove from registration
any of the securities that remain unsold at the end of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in Salt Lake City, State of Utah, on the 4th day
of January 1999.
Caldera Corporation
By /s/ Radd C. Berrett, President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
<C> <C> <C>
/s/ Radd C. Berrett Director January 4, 1999
s/ Richard A. Ford Secretary, Treasurer, CFO, and January 4, 1999
Principal Accounting Officer
Jeanie Hildebrand Director
</TABLE>
EXHIBIT NO. 4.01
1997 NON-QUALIFIED STOCK OPTION PLAN
Caldera Corporation, a Florida corporation, (the "Company"), hereby
adopts this 1997 Non-Qualified Stock Option Plan (the "Plan") this 30th day
of June 1997, under which options to acquire stock of the Company may be
granted from time to time to employees and consultants of the Company or
its subsidiaries. In addition, at the discretion of the board of
directors, options to acquire stock of the Company may from time to time be
granted under this Plan to other individuals who contribute to the success
of the Company or its subsidiaries and are not employees 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, par value $.0025 per share (the
"Stock"), subject to the terms and conditions of this Plan.
2. EFFECTIVE DATE. The Plan shall become effective immediately on
adoption by the board of directors of the Company (the "Board").
3. ADMINISTRATION OF THE PLAN. Administration of the Plan shall be
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; provided however, that
if less than the entire Board is administering the Plan or grants under the
Plan, action may be taken only by a committee of two or more "disinterested
directors" as that term is defined in Rule 16b-3, and the regulations and
releases thereunder all as promulgated by the Securities and Exchange
Commission under authority of the Exchange Act of 1934, as amended. Any
option 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 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.
<PAGE>
4. SHARES OF STOCK SUBJECT TO THE PLAN. A total of five hundred
thousand (500,000) shares of Stock may be subject to, or issued pursuant
to, Options granted under the terms of this Plan. Any shares subject to an
Option under the Plan, which Option 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, and 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.
6. ELIGIBILITY. Options 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, but performed bona fide services to the Company,
as may be deemed in the best interest of the Company by the Board or a duly
authorized committee. Such Options 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, 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 five (5) years.
(b) The term of the Option, once it is granted, may be reduced
only as provided for in this Plan and 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 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, which Stock shall be valued at
its then fair market value as determined by the Board or a duly authorized
committee on the date of exercise, or by the surrender or cancellation of
other rights to Stock of the Company. 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 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 or exercise of an Option pursuant to
this Plan is subject to withholding or other trust fund payment
requirements of the Code or applicable state or local laws, such
requirements may, at the discretion of the Board or a duly authorized
committee and to the extent permitted by the terms of the Option and the
then governing provisions of the Code and the Exchange Act, be met (i) by
the holder of the Option either delivering shares of Stock or canceling
Options or other rights to acquire Stock with a fair market value equal to
such requirements; (ii) by the Company withholding shares of Stock subject
to the Option with a fair market value equal to such requirements; or (iii)
by the Company making such withholding or other trust fund payment and the
Option holder reimbursing the Company such amount paid within 10 days after
written demand therefor from the Company.
11. 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. 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. 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. 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. 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. 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.
12. OPTIONS 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 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
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.
13. ASSIGNMENT. No Option granted under this Plan shall be
transferable other than by will or the laws of descent and distribution or
pursuant to a qualified domestic relations order as defined in the Code.
Except as permitted by the foregoing, each Option 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 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 and
such rights and privileges shall immediately become null and void.
14. EFFECT OF TERMINATION OF EMPLOYMENT. In the event that any
holder is terminated or resigns from his or her position with the Company
or a subsidiary within six months of the grant of an award, any unexercised
portion of such Option shall immediately become null and void and such
holder shall have no further rights thereunder. In the event that any
officer or employee of the Company or a subsidiary is terminated at any
time for, in the determination of the Board or a duly authorized committee,
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, the Board or a duly
authorized committee may cancel any and all rights such individual may have
in the unexercised portion of any Option held at the time of termination.
The Board or a duly authorized committee may, at the time of the grant of
the Option, establish any other restrictions on the exercise of such Option
subsequent to the termination or resignation of any individual that it
deems appropriate. The foregoing paragraph shall not apply to consultants
who are issued options.
15. LISTING AND REGISTRATION OF SHARES. Each Option shall be subject
to the requirement that if at any time the Board 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 Option or the issuance or purchase of shares thereunder,
such Option may not be 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.
16. 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 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.
17. FORM OF OPTIONS. Options granted under the Plan shall be
represented by a written agreement which shall be executed by the Company
and the holder 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.
18. NO RIGHT OF EMPLOYMENT. Nothing contained in this Plan or any
Option awarded pursuant to this Plan 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.
19. AMENDMENT OF THE PLAN. This Plan may not be amended more than
once during any six month period, other than to comport with changes in the
Code or the Employee Retirement Income Security Act or the rules and
regulations promulgated thereunder. Subject to the foregoing and the
limitations, the Board or a duly authorized committee may modify and amend
the Plan in any respect.
Caldera Corporation
By: /s/ Richard R. Cook, President
ATTEST:
The undersigned hereby attests to this Caldera Corporation 1997
Non-Qualified Stock Option Plan.
Caldera Corporation
By: /s/ Donald S. Thayer, Secretary
AMENDMENT NO. 1 TO THE 1997 NON-QUALIFIED STOCK OPTION PLAN
Section 4 of the 1997 Non-Qualified Stock Option Plan of Caldera
Corporation, a Florida Corporation, shall be and hereby is amended as
follows:
4. SHARES OF STOCK SUBJECT TO THE PLAN. A total of four million
(4,000,000) shares of Stock may be subject to, or issued pursuant to,
Options granted under the terms of this Plan. Any shares subject to an
Option under the Plan, which Option 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, and 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.
The undersigned hereby attests to this Amendment No. 1 to the Caldera
Corporation 1997 Non-Qualified Stock Option Plan this 4th day of January
1999.
Caldera Corporation
By: /s/ Richard A. Ford, Secretary
EXHIBIT 4.02
NON-QUALIFIED STOCK OPTION
THIS NON-QUALIFIED STOCK OPTION (the "Option") is granted this________
day of __________________ 1999, by Caldera Corporation, a Florida
corporation, (the "Company") pursuant to a resolution of the Board of
Directors of the Company, under the terms of the 1997 Non-Qualified Stock
Option Plan of the Company, as amended, (the "Plan") to
______________________ ("Optionee").
RECITALS:
__________
WHEREAS, the Company has engaged Optionee to provided services to the
Company and as compensation for which the Company has agreed to issue
Optionee options to purchase up to ____________________ shares of the
Company's common stock, par value $.0025 (the "Common Stock"); and
WHEREAS, the Company has agreed to issue the Options pursuant to its
Plan and to register the shares of Common Stock issuable on exercise of the
Options under an S-8 registration statement filed with the Securities and
Exchange Commission.
NOW, THEREFORE, in consideration of the mutual terms and conditions of
this Option, the parties hereto agree as follows:
1. GRANT OF OPTION. The Company hereby irrevocable grants to
Optionee the right and option to purchase all or any part of an aggregate
of ____________________ shares of Common Stock on the terms and conditions
hereof.
2. EXERCISE PRICE. The exercise price of this Option shall be
$___________ per share.
3. TERM OF OPTION. Subject to the other provisions contained
herein, the Option may be exercised, in whole or in part, at any time
commencing the opening of the first business day ___ months from the date
hereof and prior to 12:00 midnight __________ years from the date of this
Option.
4. SHAREHOLDER'S RIGHTS. The Optionee shall have the rights of a
shareholder only with respect to Common Stock fully paid for by Optionee
under this Option.
5. PERSONS ENTITLED TO EXERCISE. During the Optionee's lifetime,
this Option can only be exercised by the 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. 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 a notice of exercise, a form of which is attached hereto as
Exhibit "A" and incorporated herein by this reference, setting forth the
number of Options to be exercised together with either:
a. A certified check or bank check payable to the order of the
Company in the amount of the full exercise price of the Common Stock being
purchased;
b. Shares of Common Stock of the Company already owned by the
Optionee equal to the exercise price with the Common Stock valued at its
fair market value based on the closing bid quotation for such stock on the
close of business on the day last preceding the date of the exercise of
such Option, as reported on the OTC Bulletin Board, or if not quoted on the
OTC Bulletin Board, then 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 exercise;
c. Options or other rights to purchase Common Stock valued at
the amount by which the closing bid quotations (as determined in accordance
with subparagraph (b) above) of the Common Stock subject to options or
other rights exceeds the exercise or purchase price provided on such
options or rights; or
d. Cancellation of debt owed by the Company to the Optionee,
including debt incurred for professional services rendered, employment
relationships, or otherwise, upon presentation of an invoice for services
provided to the Company.
As soon as practicable after receipt by the Company of such notice, a
certificate or certificates representing such shares of Common Stock shall
be issued in the name of the Optionee, or, if the Optionee shall so request
in the notice exercising the Option, in the name of the Optionee and
another person jointly, with right of survivorship, and shall be delivered
to the Optionee. 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 available for issuance the number of shares
of Common Stock subject to this Option.
9. LIMITATIONS ON RIGHT TO EXERCISE. If the Board of Directors, 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 in part, until such listing,
registration, or qualification shall have been obtained free of any
conditions not acceptable to the board.
10. RESTRICTIONS ON TRANSFER. The Option and the Common Stock
subject to the 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 pursuant to an exemption from such registration requirements
and only after the 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. If Rule 144 is available (and no assurance is given that it would
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 the
Optionee can sell, transfer, or otherwise dispose of the Securities without
registration.
If the Securities are not registered, 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,
in the absence of an effective registration statement covering the
Securities, the Company may refuse to consent to any transfer in the
absence of an opinion of legal counsel, satisfactory to and independent of
counsel of the Company, that such proposed transfer is consistent with the
above conditions and applicable securities laws.
11. RECORD OWNER. The Company may deem the Optionee as the absolute
owner of this Option for all purposes. This Option is exercisable only by
the Optionee or by the Optionee's duly designated or appointed
representative. This Option is not assignable except as set forth in the
Plan.
12. VALIDITY AND CONSTRUCTION. The validity and construction of this
Option shall be governed by the laws of the State of Utah.
IN WITNESS WHEREOF, the parties hereto have executed this document the
day and year first above written.
Company: Caldera Corporation
By __________________________________________
Its ___________________________________
Optionee: _______________________________________
Signature
EXHIBIT A
FORM OF EXERCISE
(To be signed only upon exercise of Option)
To: Caldera Corporation
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 Caldera
Corporation Enclosed is payment in the amount of $_______________ as the
exercise price of the Common Stock to be acquired. Please have the
certificate(s) registered in the name of
___________________________________ and delivered to
___________________________________________. 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 __________ 19___.
____________________________
Signature of Optionee
EXHIBIT NO. 5.01
RONALD N. VANCE, P.C.
ATTORNEY AT LAW
57 West 200 South
Suite 310
Salt Lake City, UT 84101
January 4, 1999
Board of Directors
Caldera Corporation
3156 East Old Mill Circle #100
Salt Lake City, Utah 84121
Re: Caldera Corporation; Registration Statement on Form S-8
Gentlemen and Madam:
I have been retained by Caldera Corporation (the "Company") in
connection with the registration statement (the "Registration Statement")
on Form S-8 to be filed by the Company with the Securities and Exchange
Commission relating to the securities of the Company. You have requested
that I render my opinion as to whether or not the securities proposed to be
issued on the terms set forth in the Registration Statement will be validly
issued, fully paid, and nonassessable.
In connection with this request, I have examined the following:
1. Articles of Incorporation of the Company, and amendments
thereto;
2. Bylaws of the Company;
3. Unanimous consent resolutions of the Company's board of
directors;
4. The Registration Statement; and
5. The Company's 1997 Non-Qualified Stock Option Plan, as
amended.
I have examined such other corporate records and documents and have
made such other examinations as I have deemed relevant.
Based on the above examination, I am of the opinion that the
securities of the Company to be issued pursuant to the Registration
Statement are validly authorized and, when issued in accordance with the
terms set forth in the Registration Statement, will be validly issued,
fully paid, and nonassessable under corporate laws of the state of Florida.
This opinion is limited in scope to the shares to be issued pursuant
to the Registration Statement and does not cover subsequent issuance of
shares to be made in the future. Such transactions are required to be
included in either a new registration statement or a post-effective
amendment to the Registration Statement, including updated opinions
concerning the validity of issuance of such shares.
Further, I consent to my name being included in the Registration
Statement as having rendered the foregoing opinion and as having
represented the Company in connection with the Registration Statement.
Sincerely,
/s/ Ronald N. Vance
EXHIBIT NO. 23.01
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
I have issued my report dated April 15, 1998, accompanying the
financial statements of Caldera Corporation, for its annual report on Form
10-KSB for the fiscal year ended December 31, 1997, and hereby consent to
the incorporation by reference to such report in the Registration Statement
on Form S-8.
/s/ Marvin B. Seidman
Certified Public Accountant
December 14, 1998
