As filed with the Securities and Exchange Commission on January 18, 2000
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________
RATIONAL SOFTWARE CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
___________________
DELAWARE 54-1217099
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
___________________
18880 HOMESTEAD ROAD
CUPERTINO, CALIFORNIA 95014
(408) 863-9900
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
1998 Employee Stock Purchase Plan
ObjecTime Limited U.S. Stock Option Plan (1997)
ObjecTime Limited Canadian Stock Option Plan (1997)
ObjecTime Limited 1998 U.S. Stock Option Plan
ObjecTime Limited 1998 Canadian Stock Option Plan
(FULL TITLE OF THE PLAN)
___________________
TIMOTHY A. BRENNAN
CHIEF FINANCIAL OFFICER AND SECRETARY
RATIONAL SOFTWARE
CORPORATION
18880 HOMESTEAD ROAD
CUPERTINO, CALIFORNIA 95014
(408) 863-9900
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
___________________
Copy to:
KATHARINE A. MARTIN, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(650) 493-9300
___________________
CALCULATION OF REGISTRATION FEE
===============================================================================
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum
Title of Each Amount Offering Aggregate Amount of
Class of Securities to be Price Per Offering Registration
to be Registered Registered Share(1) Price(1) Fee(2)
- ------------------------------- ---------- --------- -------------- -----------
<S> <C> <C> <C> <C>
1998 Employee stock Purchase Plan
Common Stock, $0.01 par value
(shares reserved for future
grant) (1)...................... 321,764 $41.65 $13,401,471 $3,538
ObjecTime Limited U.S. Stock Option
Plan (1997) Common Stock, $0.01
par value approved for issuance
thereunder (2).................. 8,700 $7.61 $66,203 $17
ObjecTime Limited Canadian Stock
Option Plan (1997) Common Stock,
$0.01 par value approved for
issuance thereunder (3)......... 33,200 $6.08 $201,813 $53
ObjecTime Limited 1998 U.S. Stock
Option Plan Common Stock, $0.01
par value approved for issuance
thereunder (4).................. 39,000 $11.50 $448,617 $118
ObjecTime Limited 1998 Canadian
Stock Option Plan Common Stock,
$0.01 par value approved for
issuance thereunder (5)......... 279,100 $11.50 $3,210,487 $848
---------- --------- -------------- -----------
TOTALS.................. 681,764 $17,325,591 $4,574
===============================================================================
</TABLE>
(1) The indicated number of shares to be registered represents additional
shares issuable under the listed plan that are not covered by prior
registration statements. Price per share and aggregate offering price
estimated in accordance with Rule 457 (h) under the Securities Act of 1933, as
amended, solely for the purpose of calculating the registration fee. The
computation is based upon eighty-five percent of the average of the high and
low price as reported on the Nasdaq National Market on January 15, 1999, the
price at which options are granted pursuant to the plan.
(2) All options outstanding under the ObjecTime Limited U.S. Stock Option
Plan (1997), as amended on January 7, 1999, (the "ObjecTime Options") are
exercisable for the Registrant's Common Shares. The ObjecTime Options were
assumed by the Registrant pursuant to the Registrant's acquisition of ObjecTime
Limited effective January 13, 2000. The exercise price per share is
determined by dividing the weighted average exercise price for ObjecTime
Options by the conversion ratio of .03880, which was used in the acquisition.
(3) All options outstanding under the ObjecTime Limited Canadian Stock
Option Plan (1997), as amended on January 7, 1999, (the "ObjecTime Options")
are exercisable for the Registrant's Common Shares. The ObjecTime Options
were assumed by the Registrant pursuant to the Registrant's acquisition of
ObjecTime Limited effective January 13, 2000. The exercise price per share is
determined by dividing the weighted average exercise price for ObjecTime
Options by the conversion ratio of .03880, which was used in the acquisition.
(4) All options outstanding under the ObjecTime Limited 1998 U.S. Stock
Option Plan, as amended on January 7, 1999, (the "ObjecTime Options") are
exercisable for the Registrant's Common Shares. The ObjecTime Options were
assumed by the Registrant pursuant to the Registrant's acquisition of ObjecTime
Limited effective January 13, 2000. The exercise price per share is
determined by dividing the weighted average exercise price for ObjecTime
Options by the conversion ratio of .03880, which was used in the acquisition.
(5) All options outstanding under the ObjecTime Limited 1998 Canadian Stock
Option Plan, as amended on January 7, 1999, (the "ObjecTime Options") are
exercisable for the Registrant's Common Shares. The ObjecTime Options were
assumed by the Registrant pursuant to the Registrant's acquisition of ObjecTime
Limited effective January 13, 2000. The exercise price per share is
determined by dividing the weighted average exercise price for ObjecTime
Options by the conversion ratio of .03880, which was used in the acquisition.
============================================================================
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
There are hereby incorporated by reference in this Registration
Statement the following documents and information heretofore filed with
the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report on Form 10-K for the year ended
March 31, 1999 as filed with the Commission.
(b) The Registrant's Quarterly Reports on Form 10-Q for the fiscal
quarters ended June 30, 1999 and September 30, 1999 filed pursuant
to the Exchange Act.
(c) The Registrant's Current Reports on Form 8-K dated December 16,
1999 filed with the Commission.
(d) The description of the Registrant's Common Stock contained in the
Registration Statement on Form S-4 (File No. 333-29799) filed by the
Registrant with the Commission on June 25, 1997 and any amendment or
report filed hereafter for the purpose of updating such description.
(e) Item 1 of Registrant's Form 8-A dated May 25, 1984 as amended on
Form 8-A/A dated May 25, 1995, filed with the Commission.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to the filing of
this Registration Statement, and prior to the filing of a post-
effective amendment which indicates that all securities offered have
been sold or which de-registers all securities then remaining unsold,
shall be deemed to be incorporated by reference in the Registration
Statement and to be part hereof from the date of filing of such
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 145 of the Delaware General Corporation Law authorizes a
court to award, or a corporation's Board of Directors to grant,
indemnity to directors and officers in terms sufficiently broad to
permit such indemnification under certain circumstances for liabilities
(including reimbursement for expenses incurred) arising under the
Securities Act of 1933, as amended. The Registrant's Certificate of
Incorporation, as amended, and Bylaws provide for indemnification of
its officers, directors, employees and other agents to the maximum
extent permitted by the Delaware Law. In addition, the Registrant has
entered into Indemnification Agreements with its officers and
directors, the form of which is attached hereto as Exhibit 10.1.
Item 7. Exemption from Registration Claims.
Not applicable.
Item 8. Exhibits
Exhibit
Number Desription
4.1 The 1998 Employee Stock Purchase Plan is incorporated herein
by reference to the Registrant's Registration Statement on
Form S-8 as filed on January 22, 1999 (File No. 333-70989).
4.2 The ObjecTime Limited U.S. Stock Option Plan, as amended on January 7,
1999, (1997) and form of Stock Option Agreement including all
amendments through January 7, 1999 thereunder
4.3 The ObjecTime Limited Canadian Stock Option Plan, as amended on
January 7, 1999 (1997) and form of Stock Option Agreement including
all amendments through January 7, 1999 thereunder
4.4 The ObjecTime Limited 1998 U.S. Stock Option Plan, as amended on
January 7, 1999, and form of Stock Option Agreement thereunder
4.5 The ObjecTime Limited 1998 Canadian Stock Option Plan, as amended on
January 7, 1999, and form of Stock Option Agreement thereunder
5.1 Opinion of counsel as to legality of Securities being
registered.
10.1 Form of Indemnification Agreement is incorporated herein by
reference to the Registrant's Registration Statement on Form
S-4 (Registration No. 333-19669), filed with the Commission
on January 13, 1997, as amended on January 17, 1997.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of KPMG LLP, Independent Auditors.
23.3 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page II-2).
Item 9. Undertakings.
(a) Rule 415 Offering. 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:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii)To reflect in the prospectus any facts or
events arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
(iii)To include any material information with
respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in
the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3 ((S)239.13 of
this chapter) or Form S-8 ((S)239.16(b) of this chapter), and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment
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.
3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each
filing of the Registrant's annual report pursuant to section 13(a) or
section 15(d) of the Exchange Act (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 the 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 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the Delaware General
Corporations Law, the Certificate of Incorporation of the Registrant,
the Bylaws of the Registrant, Indemnification Agreements entered into
between the Registrant and its officers and directors, 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 Securities 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.
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 the City of Cupertino, State of California, on
January 18, 2000.
RATIONAL SOFTWARE CORPORATION
By: /s/ Timothy A. Brennan
-----------------------
Timothy A. Brennan
Senior Vice President, Chief Financial Officer,
and Secretary
(Principal Financial Officer & Principal
Accounting Officer)
POWER OF ATTORNEY
KNOW ALL THESE PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Paul D. Levy and Timothy A. Brennan and
each of them, jointly and severally, his attorneys-in-fact, each with full
power of substitution, for him in any and all capacities, to sign any
amendments to this Registration Statement on Form S-8 and to file the same,
with exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and conforming all that
each said attorneys-in-fact, or his substitute or substitutes, may do or cause
to be done by virtue hereof.
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>
<S> <C>
Date: January 18, 2000 /s/ Paul D. Levy
--------------------------------------------
Paul D. Levy, Chairman of the Board
Date: January 18, 2000 /s/ Michael T. Devlin
--------------------------------------------
Michael T. Devlin, Chief Executive Officer
and Director
Date: January 18, 2000 /s/ Timothy A. Brennan
--------------------------------------------
Timothy A. Brennan, Senior Vice President, Chief
Financial Officer, and Secretary
(Principal Financial Officer
& Principal Accounting Officer)
Date: January 18, 2000 /s/ Leslie G. Denend
--------------------------------------------
Leslie G. Denend, Director
Date: January 18, 2000 /s/ John E. Montague
--------------------------------------------
John E. Montague, Director
Date: January 18, 2000 /s/ Allison R. Schleicher
--------------------------------------------
Allison R. Schleicher, Director
</TABLE>
<PAGE>
Index to Exhibits
Exhibit
Number Desription
4.1 The 1998 Employee Stock Purchase Plan is incorporated herein
by reference to the Registrant's Registration Statement on
Form S-8 as filed on January 22, 1999 (File No. 333-70989).
4.2 The ObjecTime Limited U.S. Stock Option Plan, as amended on January 7,
1999, (1997) and form of Stock Option Agreement including all
amendments through January 7, 1999 thereunder
4.3 The ObjecTime Limited Canadian Stock Option Plan, as amended on
January 7, 1999 (1997) and form of Stock Option Agreement including
all amendments through January 7, 1999 thereunder
4.4 The ObjecTime Limited 1998 U.S. Stock Option Plan, as amended on
January 7, 1999, and form of Stock Option Agreement thereunder
4.5 The ObjecTime Limited 1998 Canadian Stock Option Plan, as amended on
January 7, 1999, and form of Stock Option Agreement thereunder
5.1 Opinion of counsel as to legality of Securities being
registered.
10.1 Form of Indemnification Agreement is incorporated herein by
reference to the Registrant's Registration Statement on Form
S-4 (Registration No. 333-19669), filed with the Commission
on January 13, 1997, as amended on January 17, 1997.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of KPMG LLP, Independent Auditors.
23.3 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page II-2).
OBJECTIME LIMITED
U.S. STOCK OPTION PLAN
(1997)
1. ESTABLISHMENT AND PURPOSE OF THE PLAN
A Stock Option Plan (hereinafter called the "Plan") for ObjecTime
Limited (the "Corporation") is hereby established to provide the
incentive inherent in share ownership (a) to the officers and other
employees of the Corporation and any present or future subsidiary (as
that term is defined in Section 424 of the United States Internal
Revenue Code (the "Code") hereinafter referred to as a "Subsidiary" or
"Subsidiaries") of the Corporation who reside in the United States, by
providing them with opportunities to purchase Class "7" Special Shares
(the "Shares") of the Corporation pursuant to options granted hereunder
which qualify as "incentive stock options" (hereinafter referred to as
an "ISO" or "ISO's") under Section 422(b) of the Code; and (b) to
directors, officers and employees of the Corporation and Subsidiaries
who reside in the United States, by providing them with opportunities
to purchase Shares of the Corporation pursuant to options granted
hereunder which do not qualify as ISOs ("Non-Qualified Stock
Option(s)" or "NSO(s)"). Both ISOs and NSOs are also referred to
herein individually as an "Option" and collectively as "Options".
2. TERM OF PLAN
The Plan shall commence on September 30, 1997, and shall, subject to
(a) the earlier termination of the Plan by the Corporation pursuant to
the terms hereof, and (b) the approval of the Plan by the shareholders
as required under paragraph 19 hereof, continue and be in effect until
October 1, 2000 (except as to Options outstanding on that date). If the
approval of shareholders is not obtained prior to September 30, 1998
any grants of Options under the Plan made prior to that date will be
rescinded.
3. ADMINISTRATION OF THE PLAN
The board of directors (the "Board of Directors") of the Corporation,
or any committee thereof specifically designated by the Board of
Directors to be responsible therefor (the "Committee", provided that
all references in this Plan to the Committee shall mean the Board of
Directors if no Committee has been appointed), shall administer the
Plan and shall have the authority to and may from time to time by
resolution determine (a) the number of Shares in respect of which
Options shall be granted under the Plan, (b) the employees of the
Corporation and Subsidiaries (from among the class of employees
eligible under paragraph 4 hereof to receive ISOs) to whom ISOs may be
granted, and to determine the individuals and entities (from among the
class of individuals and entities eligible under paragraph 4 hereof to
receive NSOs) to whom NSOs may be granted; (c) the time or times at
which Options may be granted; (d) the exercise price of Shares subject
to each Option, which price with respect to ISOs shall not be less than
the minimum specified in paragraph 7 hereof; (e) whether each Option
granted shall be an ISO or a NSO; (f) subject to paragraph 8 hereof,
the time or times when each Option shall become exercisable and the
duration of the exercise period; (g) whether restrictions are to be
imposed on Shares subject to Options, and the nature of such
restrictions, if any; and (h) all other matters necessary or advisable
for the administration of the Plan. If and once appointed, the
Committee shall select one of its members as its Chairman and shall
hold its meetings at such time and place as it shall deem advisable. A
majority of the members of the Committee shall constitute a quorum and
all actions of the Committee shall be taken by a majority of the
members present at any meeting. Any action of the Committee may be
taken by an instrument or instruments in writing signed by all the
members of the Committee, and any action so taken shall be as effective
as if it had been passed by a majority of the votes cast by the members
of the Committee present at a meeting of such members duly called and
held.
Nothing contained in the Plan or any Option Agreement shall be
construed in any way so as to prevent the Corporation or any Subsidiary
from taking any corporate action which is deemed by the Corporation or
the Subsidiary to be appropriate or in its best interest, even if such
action would have an adverse effect on the Plan. The interpretation by
the Committee of any provision or provisions of the Plan or of any
Option granted hereunder shall be final, binding and conclusive;
provided, however, that an employee, officer or director shall have the
right not to participate in the Plan and any decision not to
participate herein shall not affect such employee's employment by, or
such director's engagement with, the Corporation. No member of the
Board of Directors or the Committee shall be liable for any action or
determination made in good faith with respect to the Plan or any Option
granted under the Plan, provided that a director shall not take any
action with respect to any Option granted to such director.
4. ELIGIBLE PARTICIPANTS
ISO's may be granted only to employees of the Corporation or a
Subsidiary. NSOs may be granted to any officer, director (whether or
not the director is a full time employee of the Corporation or a
Subsidiary) or employee of the Corporation or a Subsidiary or any
consultant to the Corporation or a Subsidiary.
5. NUMBER OF SHARES
The maximum number (the "Maximum Number") of Shares issuable pursuant
to the Plan is 600,000, subject to any amendment to such maximum number
pursuant to paragraph 19 hereof. In the event that any Option granted
hereunder shall expire or terminate for any reason whatsoever without
having been exercised in full, or shall cease to be exercisable for any
reason whatsoever in whole or in part, the unpurchased Shares subject
thereto shall again be available for the granting of Options in respect
thereto under the Plan. The number of Shares subject to option in
favour of any one person, together with any other Shares reserved for
issuance under any other plans to such person, shall not exceed 5% of
the total number of issued and outstanding Shares at the date of grant
of his Option.
6. AMENDMENT OR TERMINATION OF THE PLAN
The Board of Directors or the Committee shall have the unfettered right
to interpret the provisions of this Plan and to make such regulations
and to formulate such administrative provisions for carrying this Plan
into effect and to make such amendments to the Plan, the regulations or
administrative provisions as, from time to time, the Board of
Directors or the Committee deems appropriate in the best interests of
the Corporation. The Board of Directors may amend this Plan or adopt
alternative versions of this Plan as the Board of Directors deems
necessary or desirable to comply with the laws of, or to accommodate
the tax policies or customs of, foreign jurisdictions whose citizens or
residents may be granted Options hereunder. The Board of Directors
shall also have the unfettered right from time to time and at any time
to rescind or terminate the Plan as it shall deem advisable; provided,
however, that no such rescission or termination shall impair or change
the rights and Options theretofore granted under the Plan without the
prior written consent of the optionee or optionees affected thereby.
7. EXERCISE PRICE
7.1 The exercise price of the Shares purchased pursuant to the
Options granted hereunder shall be not be less than the fair market
value, as defined in paragraph 7.3 hereof, as of the date on which such
Options are granted. In the case of an Option granted to an eligible
person owning shares possessing more than 10% of the total combined
voting power of all classes of shares of the Corporation or a
Subsidiary, the exercise price of an Option shall be at least 110% of
fair market value of the Shares determined as of the date on which such
Options are granted. For the purpose of determining the percentage of
share ownership of the Corporation, the rules of section 424(d) of the
Code, or any successor provision thereto, shall be applicable.
7.2 Each eligible employee may be granted Options treated as ISOs
only to the extent that, in the aggregate under this Plan and all
incentive stock option plans of the Corporation and any Subsidiary,
ISOs do not become exercisable for the first time by such employee
during any calendar year with respect to Shares having a fair market
value (determined at the time the ISOs were granted) in excess of
$100,000. The Corporation intends to designate any Options granted in
excess of such limitation (determined in the order in which such
Options were granted) as NSOs.
7.3 "Fair market value" for the purposes of determining the exercise
price of an Option granted hereunder shall be determined as follows:
(a) If at the time that the Option is granted under the Plan
the Shares are listed or posted for trading on the Toronto Stock
Exchange (the "TSE"), fair market value shall mean the closing price
of the Shares on the TSE (or, if the Shares are not listed on the
TSE, fair market value shall mean the closing price on such exchange
or market in Canada on which the Shares are listed or posted for
trading as may be selected by the Committee) on the trading day
immediately preceding the date on which the Option is granted, and
if no Shares have been traded on such day the exercise price shall
be established on the same basis on the last previous day for which
a trade was reported by such stock exchange or market. In the event
that the Shares are not listed or posted for trading on a stock
exchange or market in Canada at the time of the granting of an
Option hereunder, the fair market value shall mean the last trading
price of the Shares on the National Association of Securities
Dealers Quotations Systems ("NASDAQ"), or such other market or stock
exchange in the United States on which the Shares are listed or
posted for trading as may be selected by the Committee, on the
trading day immediately preceding the date on which the Option is
granted, and if no Shares have been traded on such day the exercise
price shall be established on the same basis on the last previous
day for which a trade was reported by such market or stock exchange.
(b) If the Shares are not publicly traded at the time that the
Option is granted under the Plan, fair market value shall mean the
value determined in good faith by the Board of Directors, in its
sole discretion.
8. TERM OF OPTIONS
8.1 Term. Subject to the earlier termination of the Option as
provided herein, each Option granted hereunder shall be for a term
specified by the Committee, provided that the term shall not exceed (a)
ten years from the date of grant in the case of Options generally, and
(b) five years from the date of grant in the case of ISOs granted to
any employee owning shares possessing more than 10% of the total
combined voting power of all classes of shares of the Corporation or a
Subsidiary as determined in paragraph 7.1 hereof (in each case the
"Expiry Date").
8.2 Exercise Date. Unless the Committee determines otherwise, each
Option shall be exercisable in whole or in part, at the following rate:
(a) 50% of the total number of Shares subject to the Option shall be
exercisable on the first anniversary of the date of grant of the
Option, and (b) thereafter at a rate of 1/24th per month of an amount
equal to 50% of the total number of Shares subject to the Option (each
such date is hereinafter referred to as an "Exercise Date").The Shares
in respect of which the Option shall have become exercisable may be
purchased, in whole or in part, at any time, or from time to time,
until the expiration or termination of the Option. The Committee shall
have the right to accelerate the Exercise Date or Exercise Dates for
some or all of the Shares subject to an Option; provided that the
Committee shall not accelerate the Exercise Date of any instalment of
an ISO (which was not previously converted to an NSO) if such
acceleration would violate the annual vesting limitation contained in
Section 422(c) of the Code.
9. OPTION AGREEMENT
Each optionee shall execute an option agreement (an "Option Agreement")
which has been duly executed and delivered by the Corporation to the
optionee prior to the grant of any Option to an optionee becoming
effective. The terms and conditions of the Option Agreement need not be
the same in each case and may be changed from time to time by the
Committee. The Board of Directors may from time to time confer
authority and responsibility on one or more of its members and/or one
or more officers of the Corporation to execute and deliver Option
Agreements. The proper officers of the Corporation are authorized and
directed to take any and all action necessary or advisable from time to
time to carry out the terms of the Option Agreements.
10. ACCELERATION OF OPTION
Any Options granted hereunder, whether then exercisable or not, shall
become immediately exercisable in respect of any and all Shares to
which such Options relate, upon the approval by the Board of Directors
of: (a) the acquisition by a party from the Corporation's shareholders
of more than 50% of the then issued and outstanding Shares of the
Corporation, (b) any merger or amalgamation with any other party (other
than an affiliate or associate of the Corporation) in which the
shareholders of the Corporation immediately before the transaction do
not retain immediately thereafter direct or indirect beneficial
ownership of more than 50% of the voting stock of the Corporation or
its successor, (c) the sale or lease of all or substantially all its
assets, or (d) the dissolution or liquidation of the Corporation. In
each case the acceleration of the Options shall be conditional upon the
completion of any of the events described in (a) through (d) above. If
the optionee's Option becomes exercisable as provided in this paragraph
10, the Board of Directors shall notify each optionee that such
optionee's Option shall be fully exercisable for a period of 60 days
from the date of such notice. Upon the expiration of such 60 days, and
provided that the transaction, the approval of which by the Board of
Directors resulted in the acceleration of the outstanding Options, is
completed, all rights of the optionees to the Shares or to the exercise
of the Options shall terminate and the Option shall be null and void
and of no further force or effect whatsoever with respect to the Shares
subject to the Option.
11. DEATH OR DISABILITY OF OPTIONEE
Notwithstanding anything contained herein to the contrary, in the event
that prior to the termination or expiration of an Option an optionee
dies or becomes permanently and totally disabled while engaged as an
employee of the Corporation, any Option granted hereunder will not
terminate and will continue to vest until the Expiry Date. Any vested
Options may be exercised by the optionee or the legal personal
representative(s) or heir(s) of the optionee, as the case may be, at
any time and from time to time prior to the Expiry Date, after which
date the Option or Options shall forthwith expire and terminate and be
of no further force or effect whatsoever, and the Shares in respect of
which the Option is not exercised shall revert to the Plan.
For greater certainty, any optionee who is deemed to be an employee of
the Corporation pursuant to any medical or disability plan of the
Corporation shall be deemed to be an employee for the purposes of this
Plan.
12. TERMINATION OF EMPLOYMENT OF OPTIONEE
12.1 Without Cause. In the event that an optionee's employment with
the Corporation or a Subsidiary is terminated without Cause (as defined
in paragraph 12.4 hereof) before the exercise in full of the Option
granted to such optionee, such optionee shall be entitled to exercise
the Option to the extent of the Shares in respect of which such Option
is exercisable on the date on which notice of termination is delivered
to the optionee by the Corporation or a Subsidiary at any time
beginning on such date and ending on the earlier of (a) 90 days
following an initial public offering of shares by the Corporation (or
90 days following the expiry of any contractual or other restriction on
the resale of the shares relating to such initial public offering,
whichever is later), (b) two years following the date on which notice
of termination is delivered to the optionee by the Corporation or a
Subsidiary, and (c) the Expiry Date of the Option, and thereafter the
Option granted to such optionee shall expire and all rights to purchase
Shares pursuant to the Option granted to such optionee shall cease and
expire and be of no further force or effect. Any Shares in respect of
which the Option is not exercised during the period referred to above
shall revert to the Plan. If on the date on which notice of termination
is delivered to the optionee by either the Corporation or a Subsidiary
the Option is not exercisable in respect of all of the Shares, the
number of Shares in respect of which the Option is not exercisable on
such date shall revert to the Plan effective as of such date.
12.2 Resignation by Optionee. In the event that an optionee
resigns or terminates his or her employment with the Corporation or a
Subsidiary, before the exercise in full of the Option granted to such
optionee, such optionee shall have 90 days from the date on which
notice of termination is delivered to the Corporation or a Subsidiary
by the optionee (or until the Expiry Date of the Option, whichever is
less), to exercise the Option to the extent of the Shares in respect of
which such Option is exercisable on such date, and thereafter the
Option granted to such optionee shall expire and all rights to purchase
Shares pursuant to the Option granted to such optionee shall cease and
expire and be of no further force or effect. Any Shares in respect of
which the Option is not exercised within the 90 day period referred to
above shall revert to the Plan. If on the date on which notice of
termination is delivered by the optionee to the Corporation or a
Subsidiary the Option is not exercisable in respect of all of the
Shares, the number of Shares in respect of which the Option is not
exercisable on such date shall revert to the Plan effective as of such
date.
12.3 Committee or Board Discretion. Notwithstanding paragraphs 12.1
and 12.2 of this Plan, the Committee may, in its sole and unfettered
discretion, extend the post-termination exercise period provided for in
paragraphs 12.1 and 12.2, provided that such period does not extend
beyond the Expiry Date. Further, an Option Agreement may provide, or
the Committee may, in its sole and unfettered discretion, amend or
modify an Option Agreement (either before or after the delivery of a
notice of termination of employment to or by an optionee) to provide:
(a) that an Option does not terminate upon the delivery of a notice of
termination to an optionee by the Corporation under paragraph 12.1
hereof or to the Corporation or a Subsidiary by an optionee under
paragraph 12.2 hereof, and (b) that the Exercise Date for some or all
of the Shares subject to the Option is accelerated to an earlier date
and that the optionee shall have a specified period of time in which to
exercise the Option to the extent of the Shares in respect of which the
Option is exercisable pursuant to the Option Agreement or the Option
Agreement as amended in accordance with this paragraph.
12.4 For Cause. If the employment of an optionee is terminated by
the Corporation for Cause, such optionee's Options shall terminate on
the date (the "Termination Date") on which written notice of such
termination is given to the optionee by the Corporation and all rights
to purchase Shares pursuant to the Option granted to such optionee
shall cease and expire and be of no further force or effect. All Shares
in respect of which the Option was granted shall revert to the Plan
effective as of the Termination Date. "Cause" shall include, but shall
not be limited to, conduct involving one or more of the following: (i)
the substantial and continuing failure of an optionee, after notice
thereof, to render services to the Corporation or any Subsidiary in
accordance with the terms or requirements of his or her employment;
(ii) disloyalty, gross negligence, wilful misconduct, dishonesty or
breach of fiduciary duty to the Corporation or any Subsidiary; (iii)
the commission of an act of embezzlement or fraud; (iv) the
unauthorized disclosure of any trade secret or confidential information
of the Corporation or any Subsidiary; (v) the commission of an act
which constitutes unfair competition with the Corporation or any
Subsidiary or which induces any customer or supplier to breach a
contract with the Corporation or any Subsidiary or (vi) any other
conduct recognized by the laws of the Province of Ontario as
constituting just cause for dismissal.
12.5 General. Nothing in the Plan or in any Option Agreement entered
into between the Corporation and an employee shall be deemed to give
any optionee the right to continued employment by the Corporation or
any Subsidiary for any period of time and nothing contained herein
shall affect the right of the Corporation or any Subsidiary to
terminate, with or without Cause, an optionee's employment with the
Corporation or a Subsidiary at any time. The vesting of shares
pursuant to an Option Agreement is only earned by the optionee by
continuing as an employee of the Corporation or a Subsidiary or by
continuing to be a director or officer of one of the foregoing and not
through the act of being hired, being appointed a director, being
granted an Option or purchasing Shares pursuant to the exercise of an
Option. Options shall not be affected by any change of employment so
long as the optionee continues to be employed by the Corporation or any
Subsidiary or continues to be a director or officer of one of the
foregoing. A leave of absence for which the prior approval of the
Corporation has been obtained shall not be considered an interruption
or termination of employment under the Plan. Nothing in the Plan shall
be construed so as to give any consultant, director, officer or
employee any right to be granted an Option.
13. EXERCISE OF OPTION
13.1 Subject to the provisions of the Plan, the Options granted
hereunder may be exercised from time to time by delivery to the
Corporation at its head office, or such transfer agent as the
Corporation may from time to time designate, of a written notice (the
"Notice of Exercise of Option") in the form attached to the Option
Agreement, specifying the number of Shares with respect to which the
Option is being exercised and accompanied by payment in full of the
purchase price of the Shares then being purchased (a) in cash or
certified cheque in favour of the Corporation, or (b) at the discretion
of the Committee, by the delivery of Shares having fair market value
equal as of the date of the exercise of the Option to the cash exercise
price of the Option, or (c) by the delivery of such other lawful
consideration as is approved by the Board of Directors. The form of
consideration (for consideration other than cash) shall be subject to
the approval of the Board of Directors at the time of the exercise of
the Option. The Notice of Exercise of Option shall contain the
optionee's undertaking to comply, to the satisfaction of the
Corporation and its counsel, with all applicable requirements of any
stock exchange or exchanges upon which any securities of the
Corporation are from time to time listed and any applicable regulatory
authority or authorities.
13.2 Employee Shareholding Agreement. Unless the Corporation is a
Reporting Issuer (as defined in the Securities Act (Ontario)) or has
become an offering corporation (as defined in the Business Corporations
Act (Ontario)) at the time of exercise of an Option, the issuance of
Shares upon the exercise of an Option shall be conditional upon an
optionee executing an employee shareholding agreement in the form
attached hereto as Schedule "A", as such agreement may be amended from
time to time by the Board of Directors; provided that, in the event of
the exercise of an Option under paragraphs 11, or 12.1 hereof, the
employee shareholding agreement attached hereto as Schedule "A" shall
not include the call right or related provisions set out in Articles 2,
3 or 4 thereof.
14. NON-TRANSFERABILITY OF OPTIONS
Except as specifically provided herein, the rights of any optionee
under the Plan are personal to the optionee and are not transferable or
assignable other than by will or the laws of descent and distribution,
and except as provided herein are only exercisable by the optionee. The
obligations of each optionee pursuant to the Plan and any Option shall
be binding on his or her heirs, executors and administrators.
15. COMPLIANCE WITH SECURITIES LAWS
The grant of Options and the issuance of Shares upon the exercise of
Options shall be subject to compliance with all applicable requirements
of federal, provincial or foreign law with respect to such securities.
Options may not be exercised if the issuance of Shares upon the
exercise of the Option would constitute a violation of any applicable
federal, provincial or foreign securities laws or other law or
regulations or the requirements of any stock exchange or market system
upon which the Shares may then be listed. The inability of the
Corporation to obtain from any regulatory body having jurisdiction the
authority, if any, deemed by the Corporation's legal counsel to be
necessary to the lawful issuance and sale of any Shares hereunder shall
relieve the Corporation of any liability in respect of the failure to
issue or sell such Shares as to which such requisite authority shall
not have been obtained. As a condition to the exercise of any Option,
the Corporation may require the optionee to satisfy any qualifications
that may be necessary or appropriate, to evidence compliance with any
applicable law or regulation and to make any representation or warranty
with respect thereto as may be requested by the Corporation.
16. CHANGES IN THE CAPITAL OF THE CORPORATION
16.1 In the event of any subdivision or subdivisions of the Shares
into a greater number of Shares at any time while an Option is
outstanding, including the issue of Shares to the holders of its
outstanding Shares by way of a stock dividend or dividends, the
Corporation will thereafter deliver at the time of exercise of the
Option, in lieu of the number of Shares in respect of which the Option
is then being exercised, such greater number of Shares as the optionee
would have been entitled as a result of such subdivision or
subdivisions of the Shares or such stock dividend had the Option been
exercised prior to the date of such subdivision or stock dividend,
without the optionee making any additional payment or giving any other
consideration therefor.
16.2 In the event of any consolidation or consolidations of the Shares
into a lesser number of Shares at any time while an Option is
outstanding, the Corporation will thereafter deliver and the optionee
shall accept, at the time of the exercise of the Option, in lieu of the
number of Shares in respect of which the Option is then being
exercised, such lesser number of Shares as the optionee would have
been entitled as a result of such consolidation or consolidations had
the Option been exercised prior to such consolidation or
consolidations.
16.3 In the event of any change, reclassification or conversion of the
Shares into another class of shares of the Corporation at any time
while an Option is outstanding, the Corporation shall thereafter
deliver and the optionee shall accept, at the time of the exercise of
an Option, in lieu of the number of Shares in respect of which the
Option is being exercised, the number of shares of the Corporation of
the appropriate class or classes as the optionee would have been
entitled as a result of such change, reclassification or conversion had
the Option been exercised prior to such change, reclassification or
conversion.
16.4 Notwithstanding the foregoing, no fractional shares shall be
issued pursuant to the exercise of any Option.
17. RIGHTS OFFERINGS
If at any time the Corporation grants to the holders of Shares rights
to subscribe for and purchase pro rata additional securities of the
Corporation or of any other corporation or entity, there shall be no
adjustments made to the number of Shares or other securities subject to
the Option in consequence thereof and the Option of an optionee shall
remain unaffected and an optionee shall not be entitled to participate
in such rights offering in respect of any Shares the Option for which
has not been exercised at the time of the rights offering.
18. PROVISION OF INFORMATION
At least annually, copies of the Corporation's balance sheet and income
statement for the most recently completed fiscal year shall be made
available to each optionee to whom Options have been granted under this
Plan. The Corporation shall not be required to provide such
information to persons whose duties in connection with the Corporation
assure them access to equivalent information.
19. SHAREHOLDER APPROVAL
The Plan or any increase in the Maximum Number of Shares issuable
thereunder as provided in paragraph 5 of this Plan shall be approved by
the shareholders of the Corporation within 12 months of the date of
adoption thereof by the Board of Directors. Options granted prior to
shareholder approval of the Plan or in excess of the Maximum Number
previously approved by the shareholders shall become exercisable no
earlier than the date of shareholder approval of the Plan or such
increase in the Maximum Number, as the case may be.
20. NO RIGHTS AS A SHAREHOLDER
The optionee shall have no rights whatsoever as a shareholder in
respect of any of the optioned Shares (including any right to receive
dividends or other distributions therefrom or thereon) other than
optioned Shares in respect of which the optionee shall have exercised
such optionee's Option to purchase hereunder and which the optionee
shall have taken up and paid for and for which a share certificate has
been issued to the optionee.
21. NO REPRESENTATION OR WARRANTY
The Corporation makes no representation or warranty as to the future
market value of any Shares issued in accordance with the provisions of
this Plan.
22. GOVERNING LAW
The Plan is established under the laws of the Province of Ontario and
the rights of all parties and the construction and effect of every
provision of the Plan shall be according to the laws of the Province of
Ontario.
IN WITNESS WHEREOF the Board of Directors of OBJECTIME LIMITED has adopted
this Amended and Restated Plan this 7th day of January, 1999.
OBJECTIME LIMITED
By: c/s
-------------------------------
James McGee, President
OBJECTIME LIMITED
OPTION AGREEMENT
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OF THE UNITED STATES OF AMERICA OR UNDER THE SECURITIES LAWS OF
THE STATE OF CALIFORNIA OR OF ANY OTHER STATE. ANY RESALE OF THESE
SECURITIES IS RESTRICTED. THESE SECURITIES MAY NOT BE RESOLD,
TRANSFERRED, PLEDGED OR HYPOTHECATED WITHOUT COMPLIANCE WITH APPLICABLE
PROVINCIAL SECURITIES LAWS IN CANADA, OR IN THE CASE OF TRANSACTIONS
WITH OR BY RESIDENTS OF THE UNITED STATES OF AMERICA, UNLESS THEY ARE
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND UNDER APPLICABLE STATE
SECURITIES LAWS, OR UNLESS AN EXCEPTION FROM SUCH REGISTRATION IS
AVAILABLE. LEGAL ADVICE SHOULD BE OBTAINED BEFORE ANY RESALE OF THESE
SECURITIES.
THIS OPTION AGREEMENT is made as of the 10th day of November, 1997.
BETWEEN:
OBJECTIME LIMITED,
A corporation incorporated under the laws of Canada having
its head office at 340 March Road, Kanata, Ontario
(hereinafter referred to as the "Corporation")
AND:
'FIRSTNAME' 'LASTNAME',
(hereinafter referred to as the "Employee")
IN CONSIDERATION of the mutual covenants herein and other good and
valuable consideration (the receipt and sufficiency of which is hereby
acknowledged by each of the parties), the parties hereto covenant and
agree as follows:
1. OPTION TO PURCHASE SHARES
1.1 Pursuant to the ObjecTime Limited U.S. Stock Option Plan (1997)
(the "Plan") established by the Corporation effective as of
September 30, 1997, the Corporation hereby grants to the Employee,
subject to the terms and conditions hereinafter set out, an
irrevocable option (the "Option") to purchase up to an aggregate of
'TOTALOPTION' Class 7 Special Shares (the "Optioned Shares") at the
exercise price (the "Exercise Price") specified below under the
heading "Exercise Price", on or after the date or dates provided
for in paragraph 1.2 hereof, (the "Exercise Date(s)"), up to 5:00
p.m. (Ottawa time) on the dates specified below under the heading
"Expiry Date" (the "Expiry Date"):
OPTIONED SHARES VESTING EXERCISE EXPIRY DATE
COMMENCEMENT
DATE
- ----------------- --------------- ---------------- ---------------
<<ORIGINALOPTION>> <<GRANT DATE>> <<EXERCISE PRICE>> <<EXPIRY DATE>>
<<FY97OPTION>> <<FY97GRANT>> <<FY97PRICE>> <<FY97EXPIRY>>
1.2 The Employee may exercise and take up and pay for not more
than 20% of the Optioned Shares following the completion of each
consecutive one year period following the Vesting Commencement Date
in respect of such Optioned Shares, provided that (a) the Option
shall be exercisable in respect of the balance of the Optioned
Shares on the third anniversary of the Vesting Commencement Date of
the Optioned Shares, and (b) if the number of Optioned Shares
purchased by the Employee following any such one year period is less
than 20% of the Optioned Shares, the Employee shall have the right,
at any time prior to the Expiry Date, to exercise the Option and
purchase such number of Optioned Shares in respect of which the
Option was exercisable but which were not purchased by the Employee
following any such preceding one year period.
1.3 At 5:00 p.m. (Ottawa time) on the Expiry Date the Option
hereby granted shall immediately cease and terminate and be of no
further force or effect whatsoever as to such of the Optioned Shares
in respect of which the Option hereby granted has not then been
exercised.
1.4 The Option is intended to be an incentive stock option
within the meaning of section 422 of the United States Internal
Revenue Code.
2. INCORPORATION OF TERMS OF THE PLAN
The terms and conditions relating to the Option contained in the
Plan are hereby incorporated by reference and shall be deemed to be
contained herein as if fully recited herein. In the event of any
conflict between the terms and conditions of the Plan and the terms
and conditions of this agreement, the terms and conditions of the
Plan shall prevail. Unless otherwise specified, capitalized terms
used herein and not defined herein shall have the meaning given to
such terms in the Plan.
3. EXERCISE OF OPTION
Subject to the terms and conditions hereof, the Option hereby
granted shall be exercisable after the Exercise Date and prior to
the Expiry Date by the Employee delivering a notice (the "Notice of
Exercise of Option") in the form attached hereto as Schedule "A" to
the Corporation, or such transfer agent as the Corporation may from
time to time designate. The Notice of Exercise of Option shall
specify therein the number of Optioned Shares in respect of which
the Option is being exercised. Upon any such exercise of this
Option, together with payment in full of the Exercise Price, the
Corporation shall forthwith deliver to the Employee within l0
business days following receipt of any such Notice of Exercise of
Option, a certificate or certificates in the name of the Employee
representing in the aggregate such number of Optioned Shares as the
Employee shall have then paid for and as are specified in the Notice
of Exercise of Option. Upon the request of the Corporation the
Employee shall present this agreement to it for the appropriate
endorsement upon any exercise of the Option.
4. TAX WITHHOLDING
At the time the Option is exercised, in whole or in part, or at
any time thereafter as requested by the Corporation, the Employee
hereby authorizes the withholding from payroll and any other amounts
payable to the Employee, and otherwise agrees to make adequate
provision for any amounts required to satisfy the federal, state,
local and foreign tax withholding obligations, if any, of the
Corporation or a Subsidiary which arise in connection with the Option,
including, without limitation, obligations arising upon (i) the
exercise, in whole or in part, of the Option, (ii) the transfer, in
whole or in part, of any Optioned Shares acquired upon exercise of the
Option, (iii) the operation of any law or regulation providing for the
imputation of interest, or (iv) the lapsing of any restriction with
respect to any Optioned Shares acquired upon exercise of the Option.
The Employee is cautioned that the Option is not exercisable and the
Corporation shall have no obligation to issue a certificate for such
Optioned Shares unless such tax withholding obligations are satisfied.
5. NO OBLIGATION ON EMPLOYEE
Nothing herein contained or done pursuant hereto shall obligate the
Employee to purchase and/or pay for any Optioned Shares except those
Optioned Shares in respect of which the Employee shall have
exercised his or her Option hereunder in accordance with the terms
hereof.
6. LEGENDS
The Corporation may at any time place legends referencing any
applicable federal, state or foreign securities law restrictions on
all certificates representing the Optioned Shares subject to the
provisions of this Option Agreement. The Employee shall, at the
request of the Corporation, promptly present to the Corporation any
and all certificates representing shares acquired pursuant to the
Option in the possession of the Employee in order to carry out the
provisions of this Section. Unless otherwise specified by the
Corporation, legends placed on such certificates may include, but
shall not be limited to, the following:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH
SECURITIES, THE SALE IS MADE IN ACCORDANCE WITH RULE 144 OR RULE 701
UNDER THE ACT, OR THE CORPORATION RECEIVES AN OPINION OF COUNSEL FOR
THE HOLDER OF THESE SECURITIES REASONABLE SATISFACTORY TO THE
CORPORATION, STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR
HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF SUCH ACT."
"THE SHARES EVIDENCED BY THIS CERTIFICATE WERE ISSUED BY THE
CORPORATION TO THE REGISTERED HOLDER UPON EXERCISE OF AN INCENTIVE
STOCK OPTION AS DEFINED IN SECTION 422 OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED. THE REGISTERED HOLDER SHALL HOLD ALL SHARES
PURCHASED UNDER THE INCENTIVE STOCK OPTION IN THE REGISTERED
HOLDER'S NAME (AND NOT IN THE NAME OF ANY NOMINEE) PRIOR TO THIS
DATE OR UNTIL TRANSFERRED AS DESCRIBED ABOVE."
7. PUBLIC OFFERING
In the event of any underwritten public offering (including an
initial public offering, of shares) made by the Corporation pursuant to
an effective registration statement filed under the Securities Act of
1933, the Employee shall not offer, sell, contract to sell, pledge,
hypothecate, grant any option to purchase or make any short sale of, or
otherwise dispose of any of the Optioned Shares or any rights to
acquire the Optioned Shares for such period of time from and after the
completion of the public offering as may be established by the
underwriter for such public offering; provided, however, that such
period of time shall not exceed 180 days from the date of the
completion of the public offering. The Employee shall be subject to
this section only if the officers and directors of the Corporation are
also subject to similar arrangements.
8. NOTICE
8.1 Any notice delivered or to be delivered or given by either party
to the other shall be sufficiently given or delivered if delivered
personally or sent by registered mail prepaid, addressed to the
party at the addresses hereinafter set out and shall be deemed to
have been received on the third business day following the date of
mailing thereof, provided that such notice shall not be deemed to
have been received or sent by registered mail at a time during
postal strikes, slow-downs or other similar delays, and in such
event a party delivering or giving such notice shall give or deliver
the same by hand to the party by whom it is to be received:
TO THE CORPORATION:
OBJECTIME LIMITED
340 March Road
Kanata, Ontario
K2K 2E4
Attention: General Counsel
TO THE EMPLOYEE :
'FIRSTNAME' 'LASTNAME'
'STREET1' 'STREET2'
'CITY', 'STATE'
'ZIP'
8.2 Either party may change the applicable address for service by
delivering written notice of the new address to the other party in
the manner set out above.
9. ACKNOWLEDGEMENT OF RECEIPT OF PLAN
The Employee hereby acknowledges receipt of a copy of the Plan.
The Employee further acknowledges and agrees that all decisions and
interpretations of the Board of Directors or the Committee with respect
to the Plan or the Option shall be conclusive and binding upon the
Employee.
10. GENERAL PROVISIONS
10.1 Time shall be of the essence of this agreement.
10.2 This agreement shall be governed and construed in accordance with
the laws of the Province of Ontario and the laws of Canada
applicable therein.
10.3 The parties hereto shall do all further acts and things and
execute all further documents reasonably required in the
circumstances to effect the provisions and intent of this agreement.
10.4 This agreement shall enure to the benefit of and be binding upon
the Employee and the Corporation and their respective heirs,
executors, administrators, successors and assigns.
10.5 This agreement, including the terms and conditions of the Plan,
constitutes the entire agreement between the Corporation and the
Employee pertaining to the subject matter hereof and supersedes all
prior agreements, understandings, negotiations, and discussions,
whether oral or written, between the Corporation and the Employee
pertaining to the subject matter hereof. No amendment of any
provision of this agreement shall be binding unless in writing and
executed by the Corporation and the Employee.
IN WITNESS WHEREOF this agreement has been executed by the parties
hereto..
SIGNED, SEALED AND DELIVERED
OBJECTIME LIMITED
By:
--------------------------
James McGee, President
------------------------- -------------------------
Witness 'FIRSTNAME' 'LASTNAME'
SCHEDULE "A"
NOTICE OF EXERCISE OF OPTION
[DATE]
Attention: President
Dear Sir:
Re: Stock Option
Please be advised that I, being the holder
of an option to purchase Class 7 Special Shares of ObjecTime Limited
(the "Corporation") at the exercise price of CDN$ per share,
hereby exercise my option to purchase of such Class 7
Special Shares (the "Purchased Shares") of the Corporation. I enclose
my cheque payable to the Corporation for $
representing the full purchase price for the Purchased Shares. Please
arrange for delivery to me of a certificate representing the Purchased
Shares registered as follows:
--------------------------------------------
Name in which certificate is to be registered
---------------------------------------------
FULL ADDRESS
---------------------------------------------
The undersigned hereby undertakes to comply, to the satisfaction of
the Corporation and its counsel, with all applicable requirements of
any stock exchange or exchanges upon which any securities of the
Corporation are from time to time listed and any applicable regulatory
authority or authorities.
Yours very truly,
---------------------------------------------
Signature
---------------------------------------------
Name (Please print)
OBJECTIME LIMITED
THIS CLASS "8" EMPLOYEE SHAREHOLDING AGREEMENT made the * day of *,
19*.
BETWEEN:
*
of the City of *,
in the Province of Ontario,
(hereinafter referred to as the "Employee")
AND:
ObjecTime Limited, a corporation
incorporated under the laws of
Canada
(hereinafter referred to as the "Corporation")
WHEREAS Employee has exercised an option granted to the Employee by the
Corporation and has thereby acquired certain Class 8 Shares of the
Corporation;
AND WHEREAS the option agreement entered into between the Employee and
the Corporation provides that the Employee shall, as a condition to the
issuance of the shares to the Employee by the Corporation pursuant to the
option agreement, enter into this agreement;
IN CONSIDERATION of the mutual covenants herein contained and the issue
to the Employee of the Employee's Shares, the parties hereto covenant and
agree as follows:
ARTICLE 1.00 -- DEFINITIONS AND INTERPRETATION
1.01 Definitions - As used in this Agreement, the following words and
phrases mean:
(a) "Agreement" means this Agreement and any written amendments
thereto executed by both the Corporation and the Employee;
(b) "Book Value of the Corporation" means the amount paid up in
respect of all Special Shares of the Corporation at the
relevant date together with the aggregate of the retained
earnings and of all other surplus accounts of the
Corporation, determined in accordance with generally accepted
accounting principles, after deducting therefrom all declared
but unpaid dividends, on any shares ranking in priority to
the Employee's Shares;
(c) "Book Value of the Employee's Shares" means the amount
obtained by multiplying the Book Value of the Corporation at
the relevant date by a fraction, the numerator of which is
the total number of the Employee's Shares and the denominator
of which is the total number of issued voting Special Shares
of all classes at the same date;
(d) "Call Notice" means the notice referred to in Section 2.01
hereof;
(e) "Date of Closing" means thirty (30) days after the delivery
of the Call Notice;
(f) "Employee's Shares" means the Class "8" Special Shares
allocated and issued to the Employee under the terms of this
Agreement and all such other shares of the Corporation into
which such Class "8" Special Shares may at any time be
converted, subdivided, consolidated or otherwise transformed;
(g) "Fair Market Value" means the amount determined under
Schedule "A" attached hereto;
(h) "Fair Market Value of the Employee's Shares" means the amount
determined under Schedule "A" attached hereto;
(i) "Founding Shareholders' Agreement" means the agreement among
Ian Engelberg, Garth Gullekson, James McGee, Branislav Selic
and ObjecTime Limited dated the 1st day of January, 1995 to
regulate the rights and obligations of the parties thereto;
(j) "Paid Up Amount of the Employee's Shares" means the actual
amount of money paid to the Corporation by the Employee for
the purchase of the Employee's Shares at the time of their
issue.
(k) "Place of Closing" means the offices of the solicitors for
the Corporation or such other place as may be agreed to by
the Corporation and the Employee;
(l) "Prime Bank Rate" means the commercial lending rate of
interest, expressed as an annual rate, which the
Corporation's principal bankers quote in Ottawa as its prime
lending rate which it charges to its commercial customers for
loans in Canadian funds;
(m) "Purchase Price" means in respect of the purchase and sale of
the Employee's Shares under this Agreement:
(i) the Paid Up Amount of the Employee's Shares, in respect
of all the Employee's Shares acquired by the Employee
during the two year period immediately prior to the
delivery date of the Call Notice;
(ii) the Book Value of the Employee's Shares, in respect of
all the Employee's Shares acquired by the Employee at
any time more than two (2) years and less than four (4)
years immediately prior to the delivery date of the
Call Notice;
(iii) the Fair Market Value of the Employee's Shares, in
respect of all the Employee's Shares acquired by the
Employee at any time more than four (4) years
immediately prior to the delivery date of the Call
Notice.
Provided that, if the amount determined under paragraphs (ii)
and (iii) above is less than the Paid Up Amount, the Purchase
Price shall be the Paid Up Amount.
For purposes of this Agreement and, in particular of the
calculation of the Purchase Price, the Employee's Shares
shall be deemed to have been acquired by the Employee on *.
(n) "Special Shares" means, collectively, all those issued Class
"1" Special Shares, Class "2" Special Shares, Class "3"
Special Shares, Class "4" Special Shares, Class "5" Special
Shares, Class "6" Special Shares, Class "7" Special Shares,
Class "8" Special Shares and any other issued Special Shares
created at any time by the Corporation with an attribute of
sharing pari passu with all other Special Shares;
(o) "Time of Closing" means 2:00 p.m. or such other time on the
Date of Closing as may be agreed to by the Employee and the
Corporation.
[NOTE: Articles 2, 3 and 4 shall be deleted from this agreement in the
event that Shares are acquired as a result of the exercise of an option
under paragraphs 11 or 12.1 of the ObjecTime Limited 1998 Canadian Stock
Option Plan or paragraphs 11 or 12.1 of the ObjecTime Limited 1998 US
Stock Option Plan.]
ARTICLE 2.00 -- "CALL" PRIVILEGE
2.01 Call Notice - At any time after the Employee either resigns from
his or her employment with the Corporation or is terminated for cause (as
defined in the ObjecTime Limited Stock Option Plans) by the Corporation,
the Corporation shall have the right to send a notice in writing to the
Employee requiring the Employee to sell to the Corporation all, but not
less than all, the Employee's Shares and upon receipt of such notice the
Employee shall be required to sell and the Corporation required to
purchase all the said Employee's Shares upon and subject to the terms and
conditions hereinafter set out.
2.02 Purchase Price - The Purchase Price shall be determined as of the
last day of the month in which the Call Notice shall have been given to
the Employee.
ARTICLE 3.00 -- GENERAL SALE PROVISIONS
3.01 Transfer Restriction - Except as provided in Section 2.01 hereof,
the Employee's Shares in the capital of the Corporation may not be
transferred except with the approval, in writing, of at least 75% of the
Special Shares held directly or indirectly by such of Ian Engelberg,
Garth Gullekson, James McGee and Branislav Selic as shall then be
employees of the Corporation.
3.02 Sale Provisions - The provisions of this Article shall apply to
any purchase of the Employee's Shares pursuant to the provisions of
Article 2.00 hereof.
3.03 Method of Payment - The Purchase Price shall be paid in five
equal annual instalments, without interest, commencing on the Date of
Closing and thereafter each instalment to be paid on each of the next
four anniversary dates of the Date of Closing, subject to the following
terms and conditions:
(a) if the purchase price is an amount less than TWENTY-FIVE
THOUSAND ($25,000.00) DOLLARS, it shall be paid in full,
subject to subparagraphs (b) and (c) immediately below, on
the Date of Closing;
(b) all amounts paid in any fiscal year on all purchases of
Special Shares of the Corporation under the Founding
Shareholders' Agreement, this Agreement and under all other
shareholding agreements with other employees or former
employees of the Corporation shall not in any event exceed
20% of the amount of Retained Earnings determined in the
accounts of the Corporation for the immediately preceding
fiscal year of the Corporation, which Retained Earnings shall
be calculated in accordance with generally accepted
accounting principles applied on a basis consistent with the
previous year;
(c) if the Retained Earnings for the immediately preceding fiscal
year shall be inadequate to pay all the amounts payable in
any year for the purchase of Special Shares of the
Corporation, the amount to be paid to the Employee in this
Agreement shall abate on a pro rata basis with all other
amounts required to be paid on the purchases of such Special
Shares of the Corporation and all amounts, in arrears,
required to be paid to the Employee under the terms of this
Agreement shall be carried over to and be paid in the next
year and such unpaid arrears shall bear interest at the Prime
Bank Rate until fully paid, provided that, again in each
year, the limit of 20% shall apply, and so on until all
amounts shall be paid to the Employee hereunder and, in
respect thereof, the oldest amounts owed to the Employee
under this Agreement shall be deemed to be paid first; and
(d) notwithstanding any other terms of this Agreement, any
balance due to the Employee under this Agreement may be
prepaid in whole or in part at any time or times without
notice or bonus.
3.04 Documents on Closing - At the Time of Closing, the Employee
shall:
(a) assign and transfer to the Corporation the Employee's Shares
and shall deliver the required share certificate(s) duly
endorsed for transfer into the Corporation's name;
(b) do all other things required in order to deliver good and
marketable title to the Employee's Shares to the Corporation
free and clear of any claims, liens and encumbrances
whatsoever, including, without limitation, the delivery of
any governmental releases and declarations of transmission.
Provided that, if at the Time of Closing the Employee's
Shares are not free and clear of all claims, liens and
encumbrances, the Corporation may, without prejudice to any
other rights which it may have, purchase the Employee's
Shares subject to such claims, liens and encumbrances. In
that event, the Corporation shall, at the Time of Closing,
assume all obligations and liabilities with respect to such
claims, liens and encumbrances and the Purchase Price payable
by the Corporation for the Employee's Shares shall be
satisfied, in whole or in part, as the case may be, by such
assumption. The amount so assumed shall reduce the Purchase
Price payable at the Time of Closing;
(c) deliver to the Corporation a release by the Employee of all
the Employee's claims against the Corporation with respect to
any matter or thing up to and including the Time of Closing
in respect of the Employee's position as a shareholder of the
Corporation, except for any claims which might arise out of
the transaction of purchase and sale herein contemplated;
(d) either provide the Corporation with evidence reasonably
satisfactory to the Corporation that the Employee is not then
a "non-resident" of Canada within the meaning of the Income
Tax Act (Canada) or provide the Corporation with a
certificate pursuant to Subsection 116(2) of the Income Tax
Act (Canada) with a certificate limit in an amount not less
than the Purchase Price for the Employee's Shares; provided
that if such evidence or certificate is not forthcoming, the
Corporation shall be entitled to make the payment of tax
required under Article 116 of the Income Tax Act (Canada) and
to deduct such payment from the Purchase Price for the
Employee's Shares.
3.05 Release of Employee - At the Time of Closing, the Corporation
shall deliver to the Employee a release by the Corporation of all its
claims against the Employee with respect to any matter or thing arising
as a result of the Employee being a shareholder of the Corporation,
except for any claims which might arise out of the wrongdoing of the
Employee or out of the transaction of purchase and sale herein
contemplated.
3.06 Power of Attorney - If, at the Time of Closing, the Employee
fails to complete the subject transaction of purchase and sale, the
Corporation shall have the right, if not in default under this Agreement,
without prejudice to any other rights which it may have, upon payment of
the Purchase Price payable to the Employee at the Time of Closing to the
credit of the Employee in the main branch of the Corporation's bankers in
the City of Ottawa, to execute and deliver, on behalf of and in the name
of the Employee, such deeds, transfers, share certificates, resignations
or other documents that may be necessary to complete the subject
transaction and the Employee hereby irrevocably appoints the Corporation
as the Employee's attorney with full power and authority available under
the Powers of Attorney Act, R.S.O. 1980, c. 386 to transfer the
Employee's Shares, and, in accordance with the said Act, the Employee
declares that this power of attorney may be exercised during any
subsequent legal incapacity on the Employee's part.
ARTICLE 4.00 -- EMPLOYMENT CONSIDERATION
4.01 Full Consideration - The Employee acknowledges that the Purchase
Price of the Employee's Shares as set out in this Agreement will be and
is a full and fair consideration for such Shares and, in the event that
the Corporation delivers to the Employee a Call Notice under Article 2
hereof, the Employee hereby agrees to accept the Purchase Price in full
and complete satisfaction of any and all rights which the Employee has in
respect of such Employee's Shares and shall release and forever discharge
the Corporation in respect of such Employee's Shares without further
demand, claim or complaint in respect thereof.
ARTICLE 5.00 MANDATORY SALE TO THIRD PARTY
5.01 If an independent third party shall make a bona fide offer
(an "Offer") to purchase all of the shares of the Corporation held by
all of the shareholders of the Corporation which the holders of shares
entitled to not less than 75% of the votes attaching to shares of the
Corporation wish to accept (the "Majority") (such offer to be in cash
or marketable securities readily convertible into cash) but which other
shareholders (the "Minority") do not wish to accept, and such Offer is
conditioned upon its acceptance by all the shareholders, the Majority
may, by notice in writing given to the Minority at any time 30 days or
more prior to the expiry of the Offer, require the Minority to elect to
sell their shares pursuant to the Offer or to purchase from the
Majority at the same price specified in the Offer all of the shares
held by the Majority, such election to be notified to the Majority not
less than 10 days prior to the expiry of the Offer. If the Minority
fail to make the required election within the time so limited they
shall be deemed to have elected to sell their shares pursuant to the
Offer. If the Minority elect to purchase the shares held by the
Majority, such purchase shall be completed and paid for not later than
30 days following such election.
ARTICLE 6.00 -- TERMINATION
6.01 Prior Agreements - All prior agreements between the Employee and
the Corporation regarding the Employee Shares, whether written or oral,
are hereby terminated.
6.02 Termination - Notwithstanding any other provision of this
Agreement to the contrary, this Agreement shall terminate and be of no
effect in the event the Corporation shall cease to be a private company
and, for the purpose thereof, "cease to be a private company" means the
issue under the Business Corporations Act (Ontario) of Articles of
Amendment to delete such of the following clauses as shall be in the
Articles of Incorporation, namely:
(a) any limitation on the number of shareholders;
(b) any restriction on the transfer of shares; and
(c) any prohibition against advertising or issuing shares to the
public.
ARTICLE 7.00 -- GENERAL CONTRACT PROVISIONS
7.01 Share Notation - All certificates for Class "8" Special Shares of
the Corporation representing the Employee's Shares shall have the
following legend endorsed thereon forthwith after the execution of this
Agreement:
"The shares represented by this certificate are
subject to an agreement dated the * day of *,
19*, made between the holder of this certificate
and ObjecTime Limited."
7.02 Share Deposit - The original share certificate for all Employee's
Shares shall be held in escrow safekeeping by the Secretary of the
Corporation and the Employee shall receive a deposit certificate signed
by the Secretary certifying the number of Class "7" Shares so held in
escrow safekeeping by the Secretary on behalf of the Employee.
7.03 Notices - All notices, requests, demands or other communications
by the terms hereof required or permitted to be given by one party to
another shall be given in writing by personal delivery or by registered
mail, postage prepaid, addressed to such other party or delivered to such
other party as follow:
or at such other address as may be given by any of them to the others in
writing from time to time and such notices, requests, demands or other
communications shall be deemed to have been received when delivered, or,
if mailed, forty-eight (48) hours after 12:01 a.m. on the day following
the day of the mailing thereof; provided that if any such notice,
request, demand or other communication shall have been mailed and if
regular mail service shall be interrupted by strikes or other
irregularities, such notices, requests, demands or other communications
shall be deemed to have been received forty-eight (48) hours after 12:01
a.m. on the day following the resumption of normal mail service.
7.04 Time - Time shall be of the essence of this Agreement and of
every part hereof and no extension or variation of this Agreement shall
operate as a waiver of this provision.
7.05 Entire Agreement - This Agreement constitutes the entire
agreement between the parties hereto with respect to the Employee's
Shares and its execution has not been induced by, nor do any of the
parties hereto rely upon or regard as material, any representations or
writings whatsoever not incorporated herein and made a part hereof.
7.06 Binding Nature - This Agreement shall enure to the benefit of and
be binding upon the parties hereto and their respective heirs, executors,
administrators, successors, assigns and legal representatives.
IN WITNESS WHEREOF the parties have duly executed this Agreement this *
day of *, 19*.
SIGNED, SEALED AND DELIVERED
in the presence of:
-------------------------- -----------------------------
ObjecTime Limited
By:
-----------------------------
Name: James McGee
Office: President c/s
By:
-----------------------------
Name: Jim Ablett
Office: Vice President, Finance
FAIR MARKET VALUE OF THE EMPLOYEE'S SHARES
The Fair Market Value of the Employee's Shares shall be determined
by the Board of Directors of the Corporation, having regard to the
following rules and procedures:
(a) that the fair market value of each of the Employee's Shares
shall be identical to the fair market value of each Special
Share of the Corporation without regard to separate classes
of Special Shares;
(b) that the Board of Directors shall carefully review and
examine each of the following sources of information in
determining fair market value, namely:
(i) the financial operating results in the current year
since the last fiscal year end;
(ii) the financial statements of the Corporation in the
three immediately preceding fiscal years, placing major
weight, in its determination, on the performance
results in the most recent fiscal year end;
(iii) the recent determinations, if any, of the fair market
value in Schedule "A" of the Founding Shareholders'
Agreement;
(iv) the recent valuations of the Corporation, if any, made
by a business valuator under the terms of the Founding
Shareholders' Agreement; and
(v) all other relevant considerations in determining the
fair value of the Corporation's Special Shares applied
in accordance with generally accepted valuation
principles; and
(c) that the fair market value of each of the Employee's Shares
as determined by the Board of Directors shall be confirmed as
to its reasonableness by the firm of chartered accountants
retained by the Corporation to review or to audit the
accounts, as the case may be, of the Corporation; and
(d) that the Purchase Price of the Employee's Shares being
purchased and sold under Article 2.00 shall be determined by
dividing the Fair Market Value of all the issued Special
Shares determined in the manner hereinbefore set out by all
the Special Shares then issued and outstanding, of all
classes and multiplying the resulting amount by the number of
the Employee's Shares being purchased and sold as aforesaid
provided that, for the purpose of determining the Fair Market
Value the calculation thereof and the determination of the
number of Special Shares and of the Employee's Shares shall
be made at the end of the month in which the Call Notice
shall have been made.
ObjecTime Limited
Option Agreement Amendment
To: 'FIRST NAME' 'LAST NAME'
(hereafter referred to as the "Optionee"
From: ObjecTime Limited
A corporation incorporated under the laws of Canada having its Head office at
340 martch Road, Kanata, Ontario (hereafter referred to as the "Corporation".)
Date: January 7, 1999
WHEREAS the Optionee and the Corporation entered into an option agreement dated
the 10th day of November, 1997 (the "Optionee Agreement") pursuant to the
ObjecTime Limited U.S. Option Plan (1997);
AND WHEREAS on January 7, 1999, the Corporation amended the ObjecTime Limited
Canadian Stock Option Plan (1997) and ObjecTime Limited U.S. Stock Option Plan
(1997) to, among other things, provide for an acceleration of the vesting
schedule to the options granted under the Option Agreement;
AND WHEREAS the Corporation wishes to provide the Optionee with the revised
vesting schedule for the Options which are subject to the Option Agreement;
AND WHEREAS capitalized terms used herin and not defined herein shall have the
meanings given to such terms in the Option Agreement;
NOW THEREFORE, in consideration of the mutual covenants herein and other good
and valuable consideration (the reciept and sufficiency of which is hereby
acknowledged by each of the parties), the parties hereto covenant and agree as
follows:
1. AMENDMENTS TO THE OPTION AGREEMENT. The Option Agreement is hereby amended
by deleting paragraph 1 and replacing it with the following new paragraph 1:
"1. OPTION TO PURCHASE SHARES
1.1 Pursuant to the ObjecTime Limited U.S. Stock Opotion Plan (1997),
established by the Corporation effective as of September 30, 1997, as amended
by the Corporation on January 7, 1999 (the "Plan"), the Corporation hereby
grants to the Optionee, subject to the terms and conditions hereinafter set
out, an irrevocable option (the "Option"), to purchase up to an aggregate of
'total options' Class A Preferred Shares (the "Optioned Shares") at the exercise
price (the "Exercise Price") specified below under the heading "Exercise
Price", commencing on the date set forth below under the heading Vesting
Commencement Date ("the Vesting Commencement Date"), until 5:00 p.m. (Ottawa
time) on the date specified below under the heading "Expiry Date" (the "Expiry
Date"):
OPTIONED SHARES EXERCISE PRICE VESTING EXPIRY DATE
COMMENCEMENT DATE
-------------- ----------------- ------------------ -------------
'Original Option' 'Exercise Price' 'Start Date' 'Expiry Date'
'FY97Option' 'FY97Price' 'FY97Grant' 'FY97Expiry'
1.2 The Optionee may exercise and take up and pay for not more than 50% of the
Optioned Shares on or after the first anniversary of the Vesting Commencement
Date. After the first anniversary of the Vesting Commencement Date the balance
of the Optioned Shares shall vest in equal installments at the rate of 1/24
per month each month for the 24 months following the first anniversary of the
Vesting Commencement Date. If the number of Optioned Shares purchased by the
Optionee following an Exercise Date is less than the number of Optioned Shares
in respect of which the Option is then exercisable, the Optionee shall have the
right, at any time prior to the Expiry Date, to exercise the Option and
purchase such number of Optioned Shares in respect of which the Option was
exercisable but which were not purchased by the Optionee following any such
preceding Exercise Date.
1.3 At 5:00 p.m. (Ottawa time) on the Expiry Date the Option hereby granted
shall immediatley cease and terminate and be of no further force or effect
whatsoever as to such of the Opitoned Shares in respect of which the Option
hereby granted has not been exercised."
2. CONFIRMATION OF REMAINING PROVISIONS. Except as amended herein, all other
provisions of the Option Agreement shall continue in full force and effect.
IN WITNESS WHEREOF this amendment to the Option Agreement has been executed by
the parties hereto.
SIGNED, SEALED AND DELIVERED
ObjecTime Limited
By:______________________________
James McGee, President
OBJECTIME LIMITED
CANADIAN STOCK OPTION PLAN
(1997)
1. ESTABLISHMENT AND PURPOSE OF THE PLAN
A Stock Option Plan (hereinafter called the "Plan") for ObjecTime
Limited (the "Corporation") is hereby established to provide the
incentive inherent in share ownership to the directors, officers and
other employees of the Corporation and its subsidiaries (as that term
is defined in subsection 2(5) of the Canada Business Corporations Act,
hereinafter referred to as a "Subsidiary" or "Subsidiaries") of the
Corporation by providing them with opportunities to purchase Class "7"
Special Shares (the "Shares") of the Corporation pursuant to options
granted hereunder (hereinafter referred to individually as an "Option"
and collectively as "Options").
2. TERM OF PLAN
The Plan shall commence on September 30, 1997, and shall, subject to
(a) the earlier termination of the Plan by the Corporation pursuant to
the terms hereof, and (b) the approval of the Plan by the shareholders
as required under paragraph 19 hereof, continue and be in effect until
October 1, 2000 (except as to Options outstanding on that date). If the
approval of shareholders is not obtained prior to September 30, 1998
any grants of Options under the Plan made prior to that date will be
rescinded.
3. ADMINISTRATION OF THE PLAN
The board of directors (the "Board of Directors") of the Corporation,
or any committee thereof specifically designated by the Board of
Directors to be responsible therefor (the "Committee", provided that
all references in this Plan to the Committee shall mean the Board of
Directors if no Committee has been appointed), shall administer the
Plan and shall have the authority to and may from time to time by
resolution determine (a) the number of Shares in respect of which
Options shall be granted under the Plan, (b) the employees of the
Corporation and Subsidiaries to whom Options may be granted; (c) the
time or times at which Options may be granted; (d) the exercise price
of Shares subject to each Option; (e) subject to paragraph 8 hereof,
the time or times when each Option shall become exercisable and the
duration of the exercise period; (f) whether restrictions are to be
imposed on Shares subject to Options, and the nature of such
restrictions, if any; and (g) all other matters necessary or advisable
for the administration of the Plan. If and once appointed, the
Committee shall select one of its members as its Chairman and shall
hold its meetings at such time and place as it shall deem advisable. A
majority of the members of the Committee shall constitute a quorum and
all actions of the Committee shall be taken by a majority of the
members present at any meeting. Any action of the Committee may be
taken by an instrument or instruments in writing signed by all the
members of the Committee, and any action so taken shall be as effective
as if it had been passed by a majority of the votes cast by the members
of the Committee present at a meeting of such members duly called and
held.
Nothing contained in the Plan or any Option Agreement shall be
construed in any way so as to prevent the Corporation or any Subsidiary
from taking any corporate action which is deemed by the Corporation or
the Subsidiary to be appropriate or in its best interest, even if such
action would have an adverse effect on the Plan. The interpretation by
the Committee of any provision or provisions of the Plan or of any
Option granted hereunder shall be final, binding and conclusive;
provided, however, that an employee, officer or director shall have the
right not to participate in the Plan and any decision not to
participate herein shall not affect such employee's employment by, or
such director's engagement with, the Corporation. No member of the
Board of Directors or the Committee shall be liable for any action or
determination made in good faith with respect to the Plan or any Option
granted under the Plan, provided that a director shall not take any
action with respect to any Option granted to such director.
4. ELIGIBLE PARTICIPANTS
Options may be granted to any officer, director (whether or not the
director is a full time employee of the Corporation or a Subsidiary) or
employee of the Corporation or a Subsidiary or any consultant to the
Corporation or a Subsidiary.
5. NUMBER OF SHARES
The maximum number (the "Maximum Number") of Shares issuable pursuant
to the Plan is 2,200,000, subject to any amendment to such maximum
number pursuant to paragraph 19 hereof. In the event that any Option
granted hereunder shall expire or terminate for any reason whatsoever
without having been exercised in full, or shall cease to be exercisable
for any reason whatsoever in whole or in part, the unpurchased Shares
subject thereto shall again be available for the granting of Options in
respect thereto under the Plan. The number of Shares subject to option
in favour of any one person, together with any other Shares reserved
for issuance under any other plans to such person, shall not exceed 5%
of the total number of issued and outstanding Shares at the date of
grant of his Option.
6. AMENDMENT OR TERMINATION OF THE PLAN
The Board of Directors or the Committee shall have the unfettered right
to interpret the provisions of this Plan and to make such regulations
and to formulate such administrative provisions for carrying this Plan
into effect and to make such amendments to the Plan, the regulations or
administrative provisions as, from time to time, the Board of
Directors or the Committee deems appropriate in the best interests of
the Corporation. The Board of Directors may amend this Plan or adopt
alternative versions of this Plan as the Board of Directors deems
necessary or desirable to comply with the laws of, or to accommodate
the tax policies or customs of, foreign jurisdictions whose citizens or
residents may be granted Options hereunder. The Board of Directors
shall also have the unfettered right from time to time and at any time
to rescind or terminate the Plan as it shall deem advisable; provided,
however, that no such rescission or termination shall impair or change
the rights and Options theretofore granted under the Plan without the
prior written consent of the optionee or optionees affected thereby.
7. EXERCISE PRICE
7.1 The exercise price of the Shares purchased pursuant to the
Options granted hereunder shall be not be less than the fair market
value, as defined in paragraph 7.2 hereof, as of the date on which such
Options are granted.
7.2 "Fair market value" for the purposes of determining the exercise
price of an Option granted hereunder shall be determined as follows:
(a) If at the time that the Option is granted under the Plan
the Shares are listed or posted for trading on the Toronto Stock
Exchange (the "TSE"), fair market value shall mean the closing price
of the Shares on the TSE (or, if the Shares are not listed on the
TSE, fair market value shall mean the closing price on such stock
exchange or market in Canada on which the Shares are listed or
posted for trading as may be selected by the Committee) on the
trading day immediately preceding the date on which the Option is
granted, and if no Shares have been traded on such day the exercise
price shall be established on the same basis on the last previous
day for which a trade was reported by such stock exchange or market.
In the event that the Shares are not listed or posted for trading on
a stock exchange in Canada at the time of the granting of an Option
hereunder, the fair market value shall mean the last trading price
of the Shares on the National Association of Securities Dealers
Quotations Systems ("NASDAQ"), "), or such other market or stock
exchange in the United States on which the Shares are listed or
posted for trading as may be selected by the Committee, on the
trading day immediately preceding the date on which the Option is
granted, and if no Shares have been traded on such day the exercise
price shall be established on the same basis on the last previous
day for which a trade was reported by such market or stock exchange.
(b) If the Shares are not publicly traded at the time that the
Option is granted under the Plan, fair market value shall mean the
value determined in good faith by the Board of Directors, in its
sole discretion.
8. TERM OF OPTIONS
8.1 Term. Subject to the earlier termination of the Option as
provided herein, each Option granted hereunder shall be for a term
specified by the Committee provided that the term shall not exceed ten
years from the date of grant (the "Expiry Date").
8.2 Exercise Dates. Unless the Committee determines otherwise, each
Option shall be exercisable in whole or in part, at the following rate:
(a) 50% of the total number of Shares subject to the Option shall be
exercisable on the first anniversary of the date of grant of the
Option, and (b) thereafter at a rate of 1/24th per month of an amount
equal to 50% of the total number of Shares subject to the Option (each
such date is hereinafter referred to as an "Exercise Date"). The Shares
in respect of which the Option shall have become exercisable may be
purchased, in whole or in part, at any time, or from time to time,
until the expiration or termination of the Option. The Committee shall
have the right to accelerate the Exercise Date or Exercise Dates for
some or all of the Shares subject to an Option.
9. OPTION AGREEMENT
Each optionee shall execute an option agreement (an "Option Agreement")
which has been duly executed and delivered by the Corporation to the
optionee prior to the grant of any Option to an optionee becoming
effective. The terms and conditions of the Option Agreement need not be
the same in each case and may be changed from time to time by the
Committee. The Board of Directors may from time to time confer
authority and responsibility on one or more of its members and/or one
or more officers of the Corporation to execute and deliver Option
Agreements. The proper officers of the Corporation are authorized and
directed to take any and all action necessary or advisable from time to
time to carry out the terms of the Option Agreements.
10. ACCELERATION OF OPTION
Any Options granted hereunder, whether then exercisable or not, shall
become immediately exercisable in respect of any and all Shares to
which such Options relate, upon the approval by the Board of Directors
of: (a) the acquisition by a party from the Corporation's shareholders
of more than 50% of the then issued and outstanding Shares of the
Corporation, (b) any merger or amalgamation with any other party (other
than an affiliate or associate of the Corporation) in which the
shareholders of the Corporation immediately before the transaction do
not retain immediately thereafter direct or indirect beneficial
ownership of more than 50% of the voting stock of the Corporation or
its successor, (c) the sale or lease of all or substantially all its
assets, or (d) the dissolution or liquidation of the Corporation. In
each case the acceleration of the Options shall be conditional upon the
completion of any of the events described in (a) through (d) above. If
the optionee's Option becomes exercisable as provided in this paragraph
10, the Board of Directors shall notify each optionee that such
optionee's Option shall be fully exercisable for a period of 60 days
from the date of such notice. Upon the expiration of such 60 days, and
provided that the transaction, the approval of which by the Board of
Directors resulted in the acceleration of the outstanding Options, is
completed, all rights of the optionees to the Shares or to the exercise
of the Options shall terminate and the Option shall be null and void
and of no further force or effect whatsoever with respect to the Shares
subject to the Option.
11. DEATH OR DISABILITY OF OPTIONEE
Notwithstanding anything contained herein to the contrary, in the event
that prior to the termination or expiration of an Option an optionee
dies or becomes permanently and totally disabled while engaged as an
employee of the Corporation, any Option granted hereunder will not
terminate and will continue to vest until the Expiry Date. Any vested
Options may be exercised by the optionee or the legal personal
representative(s) or heir(s) of the optionee, as the case may be, at
any time and from time to time prior to the Expiry Date, after which
date the Option or Options shall forthwith expire and terminate and be
of no further force or effect whatsoever, and the Shares in respect of
which the Option is not exercised shall revert to the Plan.
For greater certainty, any optionee who is deemed to be an employee of
the Corporation pursuant to any medical or disability plan of the
Corporation shall be deemed to be an employee for the purposes of this
Plan.
12. TERMINATION OF EMPLOYMENT OF OPTIONEE
12.1 Without Cause. In the event that an optionee's employment with
the Corporation or a Subsidiary is terminated without Cause (as defined
in paragraph 12.4 hereof) before the exercise in full of the Option
granted to such optionee, such optionee shall be entitled to exercise
the Option to the extent of the Shares in respect of which such Option
is exercisable on the date on which notice of termination is delivered
to the optionee by the Corporation or a Subsidiary at any time
beginning on such date and ending on the earlier of (a) 90 days
following an initial public offering of shares by the Corporation (or
90 days following the expiry of any contractual or other restriction on
the resale of the Shares relating to such initial public offering of
shares by the Corporation, whichever is later), (b) two years following
the date on which notice of termination is delivered to the optionee by
the Corporation or a Subsidiary, and (c) the Expiry Date of the Option,
and thereafter the Option granted to such optionee shall expire and all
rights to purchase Shares pursuant to the Option granted to such
optionee shall cease and expire and be of no further force or effect.
Any Shares in respect of which the Option is not exercised during the
period referred to above shall revert to the Plan. If on the date on
which notice of termination is delivered to the optionee by the
Corporation or a Subsidiary the Option is not exercisable in respect of
all of the Shares, the number of Shares in respect of which the Option
is not exercisable on such date shall revert to the Plan effective as
of such date.
12.2 Resignation by Optionee. In the event that an optionee
resigns or terminates his or her employment with the Corporation or a
Subsidiary, before the exercise in full of the Option granted to such
optionee, such optionee shall have 90 days from the date on which
notice of termination is delivered to the Corporation or a Subsidiary
by the optionee (or until the Expiry Date of the Option, whichever is
less), to exercise the Option to the extent of the Shares in respect of
which such Option is exercisable on such date, and thereafter the
Option granted to such optionee shall expire and all rights to purchase
Shares pursuant to the Option granted to such optionee shall cease and
expire and be of no further force or effect. Any Shares in respect of
which the Option is not exercised within the 90 day period referred to
above shall revert to the Plan. If on the date on which notice of
termination is delivered by the optionee to the Corporation or a
Subsidiary the Option is not exercisable in respect of all of the
Shares, the number of Shares in respect of which the Option is not
exercisable on such date shall revert to the Plan effective as of such
date.
12.3 Committee or Board Discretion. Notwithstanding paragraphs 12.1
and 12.2 of this Plan, the Committee may, in its sole and unfettered
discretion, extend the post-termination exercise period provided for in
paragraphs 12.1 and 12.2, provided that such period does not extend
beyond the Expiry Date. Further, an Option Agreement may provide, or
the Committee may, in its sole and unfettered discretion, amend or
modify an Option Agreement (either before or after the delivery of a
notice of termination of employment to or by an optionee) to provide:
(a) that an Option does not terminate upon the delivery of a notice of
termination to an optionee by the Corporation under paragraph 12.1
hereof or to the Corporation or a Subsidiary by an optionee under
paragraph 12.2 hereof, and (b) that the Exercise Date for some or all
of the Shares subject to the Option is accelerated to an earlier date
and that the optionee shall have a specified period of time in which to
exercise the Option to the extent of the Shares in respect of which the
Option is exercisable pursuant to the Option Agreement or the Option
Agreement as amended in accordance with this paragraph.
12.4 For Cause. If the employment of an optionee is terminated by the
Corporation for Cause, such optionee's Options shall terminate on the
date (the "Termination Date") on which written notice of such
termination is given to the optionee by the Corporation and all rights
to purchase Shares pursuant to the Option granted to such optionee
shall cease and expire and be of no further force or effect. All
Shares in respect of which the Option was granted shall revert to the
Plan effective as of the Termination Date. "Cause" shall include, but
shall not be limited to, conduct involving one or more of the
following: (i) the substantial and continuing failure of an optionee,
after notice thereof, to render services to the Corporation or any
Subsidiary in accordance with the terms or requirements of his or her
employment; (ii) disloyalty, gross negligence, wilful misconduct,
dishonesty or breach of fiduciary duty to the Corporation or any
Subsidiary; (iii) the commission of an act of embezzlement or fraud;
(iv) the unauthorized disclosure of any trade secret or confidential
information of the Corporation or any Subsidiary; (v) the commission of
an act which constitutes unfair competition with the Corporation or any
Subsidiary or which induces any customer or supplier to breach a
contract with the Corporation or any Subsidiary or (vi) any other
conduct recognized by the laws of the Province of Ontario as
constituting just cause for dismissal.
12.5 General. Nothing in the Plan or in any Option Agreement
entered into between the Corporation and an employee shall be deemed to
give any optionee the right to continued employment by the Corporation
or any Subsidiary for any period of time and nothing contained herein
shall affect the right of the Corporation or any Subsidiary to
terminate, with or without Cause, an optionee's employment with the
Corporation or a Subsidiary at any time. The vesting of shares
pursuant to an Option Agreement is only earned by the optionee by
continuing as an employee of the Corporation or a Subsidiary or by
continuing to be a director or officer of one of the foregoing and not
through the act of being hired, being appointed a director, being
granted an Option or purchasing Shares pursuant to the exercise of an
Option. Options shall not be affected by any change of employment so
long as the optionee continues to be employed by the Corporation or any
Subsidiary or continues to be a director or officer of one of the
foregoing. A leave of absence for which the prior approval of the
Corporation has been obtained shall not be considered an interruption
or termination of employment under the Plan. Nothing in the Plan shall
be construed so as to give any consultant, director, officer or
employee any right to be granted an Option.
13. EXERCISE OF OPTION
13.1 Subject to the provisions of the Plan, the Options granted
hereunder may be exercised from time to time by the delivery to the
Corporation at its head office, or such transfer agent as the
Corporation may from time to time designate, of a written notice (the
"Notice of Exercise of Option") in the form attached to the Option
Agreement, specifying the number of Shares with respect to which the
Option is being exercised and accompanied by payment in full of the
purchase price of the Shares then being purchased (a) in cash or
certified cheque in favour of the Corporation, or (b) at the discretion
of the Committee, by the delivery of Shares having fair market value
equal as of the date of the exercise of the Option to the cash exercise
price of the Option, or (c) by the delivery of such other lawful
consideration as is approved by the Board of Directors. The form of
consideration (for consideration other than cash) shall be subject to
the approval of the Board of Directors at the time of the exercise of
the Option. The Notice of Exercise of Option shall contain the
optionee's undertaking to comply, to the satisfaction of the
Corporation and its counsel, with all applicable requirements of any
stock exchange or exchanges upon which any securities of the
Corporation are from time to time listed and any applicable regulatory
authority or authorities.
13.2 Employee Shareholding Agreement. Unless the Corporation is a
Reporting Issuer (as defined in the Securities Act (Ontario)) or has
become an offering corporation (as defined in the Business Corporations
Act (Ontario)) at the time of exercise of an Option, the issuance of
Shares upon the exercise of an Option shall be conditional upon an
optionee executing an employee shareholding agreement in the form
attached hereto as Schedule "A", as such agreement may be amended from
time to time by the Board of Directors; provided that, in the event of
the exercise of an Option under paragraphs 11 or 12.1 hereof, the
employee shareholding agreement attached hereto as Schedule "A" shall
not include the call right or related provisions set out in Articles 2,
3 or 4 thereof.
14. NON-TRANSFERABILITY OF OPTIONS
Except as specifically provided herein, the rights of any optionee
under the Plan are personal to the optionee and are not transferable or
assignable other than by will or the laws of descent and distribution,
and except as provided herein are only exercisable by the optionee. The
obligations of each optionee pursuant to the Plan and any Option shall
be binding on his or her heirs, executors and administrators.
15. COMPLIANCE WITH SECURITIES LAWS
The grant of Options and the issuance of Shares upon the exercise of
Options shall be subject to compliance with all applicable requirements
of federal, provincial or foreign law with respect to such securities.
Options may not be exercised if the issuance of Shares upon the
exercise of the Option would constitute a violation of any applicable
federal, provincial or foreign securities laws or other law or
regulations or the requirements of any stock exchange or market system
upon which the Shares may then be listed. The inability of the
Corporation to obtain from any regulatory body having jurisdiction the
authority, if any, deemed by the Corporation's legal counsel to be
necessary to the lawful issuance and sale of any Shares hereunder shall
relieve the Corporation of any liability in respect of the failure to
issue or sell such Shares as to which such requisite authority shall
not have been obtained. As a condition to the exercise of any Option,
the Corporation may require the optionee to satisfy any qualifications
that may be necessary or appropriate, to evidence compliance with any
applicable law or regulation and to make any representation or warranty
with respect thereto as may be requested by the Corporation.
16. CHANGES IN THE CAPITAL OF THE CORPORATION
16.1 In the event of any subdivision or subdivisions of the Shares
into a greater number of Shares at any time while an Option is
outstanding, including the issue of Shares to the holders of its
outstanding Shares by way of a stock dividend or dividends, the
Corporation will thereafter deliver at the time of exercise of the
Option, in lieu of the number of Shares in respect of which the Option
is then being exercised, such greater number of Shares as the optionee
would have been entitled as a result of such subdivision or
subdivisions of the Shares or such stock dividend had the Option been
exercised prior to the date of such subdivision or stock dividend,
without the optionee making any additional payment or giving any other
consideration therefor.
16.2 In the event of any consolidation or consolidations of the Shares
into a lesser number of Shares at any time while an Option is
outstanding, the Corporation will thereafter deliver and the optionee
shall accept, at the time of the exercise of the Option, in lieu of the
number of Shares in respect of which the Option is then being
exercised, such lesser number of Shares as the optionee would have
been entitled as a result of such consolidation or consolidations had
the Option been exercised prior to such consolidation or
consolidations.
16.3 In the event of any change, reclassification or conversion of the
Shares into another class of shares of the Corporation at any time
while an Option is outstanding, the Corporation shall thereafter
deliver and the optionee shall accept, at the time of the exercise of
an Option, in lieu of the number of Shares in respect of which the
Option is being exercised, the number of shares of the Corporation of
the appropriate class or classes as the optionee would have been
entitled as a result of such change, reclassification or conversion had
the Option been exercised prior to such change, reclassification or
conversion .
16.4 Notwithstanding the foregoing, no fractional shares shall be
issued pursuant to the exercise of any Option.
17. RIGHTS OFFERINGS
If at any time the Corporation grants to the holders of Shares rights
to subscribe for and purchase pro rata additional securities of the
Corporation or of any other corporation or entity, there shall be no
adjustments made to the number of Shares or other securities subject to
the Option in consequence thereof and the Option of an optionee shall
remain unaffected and an optionee shall not be entitled to participate
in such rights offering in respect of any Shares the Option for which
has not been exercised at the time of the rights offering.
18. PROVISION OF INFORMATION
At least annually, copies of the Corporation's balance sheet and income
statement for the most recently completed fiscal year shall be made
available to each optionee to whom Options have been granted under this
Plan. The Corporation shall not be required to provide such
information to persons whose duties in connection with the Corporation
assure them access to equivalent information.
19. SHAREHOLDER APPROVAL
The Plan or any increase in the Maximum Number of Shares issuable
thereunder as provided in paragraph 5 of this Plan shall be approved by
the shareholders of the Corporation within 12 months of the date of
adoption thereof by the Board of Directors. Options granted prior to
shareholder approval of the Plan or in excess of the Maximum Number
previously approved by the shareholders shall become exercisable no
earlier than the date of shareholder approval of the Plan or such
increase in the Maximum Number, as the case may be.
20. NO RIGHTS AS A SHAREHOLDER
The optionee shall have no rights whatsoever as a shareholder in
respect of any of the optioned Shares (including any right to receive
dividends or other distributions therefrom or thereon) other than
optioned Shares in respect of which the optionee shall have exercised
such optionee's Option to purchase hereunder and which the optionee
shall have taken up and paid for and for which a share certificate has
been issued to the optionee.
21. NO REPRESENTATION OR WARRANTY
The Corporation makes no representation or warranty as to the future
market value of any Shares issued in accordance with the provisions of
this Plan.
22. GOVERNING LAW
The Plan is established under the laws of the Province of Ontario and
the rights of all parties and the construction and effect of every
provision of the Plan shall be according to the laws of the Province of
Ontario.
IN WITNESS WHEREOF the Board of Directors of OBJECTIME LIMITED has adopted
this Amended and Restated Plan this 7th day of January, 1999.
OBJECTIME LIMITED
By: c/s
------------------------------
James McGee, President
OBJECTIME LIMITED
OPTION AGREEMENT
THE SECURITIES TO BE ISSUED HEREUNDER ARE OFFERED FOR SALE AND SOLD IN
RELIANCE UPON EXEMPTIONS FROM THE PROSPECTUS AND REGISTRATION
REQUIREMENT CONTAINED IN SECURITIES LEGISLATION IN CERTAIN PROVINCIAL
JURISDICTIONS WITHIN CANADA. ANY RESALE OF THESE SECURITIES IS
RESTRICTED. THESE SECURITIES MAY NOT BE RESOLD, TRANSFERRED, PLEDGED OR
HYPOTHECATED WITHOUT COMPLIANCE WITH APPLICABLE PROVINCIAL SECURITIES
LAWS IN CANADA. LEGAL ADVICE SHOULD BE OBTAINED BEFORE ANY RESALE OF
THESE SECURITIES.
THIS OPTION AGREEMENT is made as of the 10th day of November, 1997.
BETWEEN:
OBJECTIME LIMITED,
A corporation incorporated under the laws of Canada having
its head office at 340 March Road, Kanata, Ontario
(hereinafter referred to as the "Corporation")
AND:
'FIRSTNAME' 'LASTNAME',
(hereinafter referred to as the "Employee")
IN CONSIDERATION of the mutual covenants herein and other good and
valuable consideration (the receipt and sufficiency of which is hereby
acknowledged by each of the parties), the parties hereto covenant and
agree as follows:
1. OPTION TO PURCHASE SHARES
1.1 Pursuant to the ObjecTime Limited Canadian Stock Option Plan
(1997) (the "Plan"), established by the Corporation effective as of
September 30, 1997, the Corporation hereby grants to the Employee,
subject to the terms and conditions hereinafter set out, an
irrevocable option (the "Option "), to purchase up to an aggregate
of 'TOTALOPTIONS' Class 7 Special Shares (the "Optioned Shares") at
the exercise price (the "Exercise Price") specified below under the
heading "Exercise Price", on or after the date or dates specified
below under the heading "Exercise Date" (the "Exercise Date(s)"), up
to 5:00 p.m. (Ottawa time) on the dates specified below under the
heading "Expiry Date" (the "Expiry Date"):
OPTIONED SHARES VESTING EXERCISE EXPIRY DATE
COMMENCEMENT
DATE
- ----------------- --------------- ---------------- ---------------
<<ORIGINALOPTION>> <<GRANT DATE>> <<EXERCISE PRICE>> <<EXPIRY DATE>>
<<FY96OPTION>> <<FY96GRANT>> <<FY96PRICE>> <<FY96EXPIRY>>
<<FY97OPTION>> <<FY97PRICE>> <<FY97EXERCISE>> <<FY97EXPIRY>>
1.2 At 5:00 p.m. (Ottawa time) on the Expiry Date the Option
hereby granted shall immediately cease and terminate and be of
no further force or effect whatsoever as to such of the Optioned
Shares in respect of which the Option hereby granted has not then
been exercised.
2. INCORPORATION OF TERMS OF THE PLAN
The terms and conditions relating to the Option contained in the
Plan are hereby incorporated by reference and shall be deemed to be
contained herein as if fully recited herein. In the event of any
conflict between the terms and conditions of the Plan and the terms
and conditions of this agreement, the terms and conditions of the
Plan shall prevail. Unless otherwise specified, capitalized terms
used herein and not defined herein shall have the meaning ascribed
to such terms in the Plan.
3. EXERCISE OF OPTION
Subject to the terms and conditions hereof, the Option hereby
granted shall be exercisable after the Exercise Date and prior to
Expiry Date by the Employee delivering a notice (the "Notice of
Exercise of Option") in the form attached hereto as Schedule "A" to
the Corporation, or such transfer agent as the Corporation may from
time to time designate. The Notice of Exercise of Option shall
specify therein the number of Optioned Shares in respect of which
the Option is being exercised. Upon any such exercise of this
Option, together with payment in full of the Exercise Price, the
Corporation shall forthwith deliver to the Employee within l0
business days following receipt of any such Notice of Exercise of
Option, a certificate or certificates in the name of the Employee
representing in the aggregate such number of Optioned Shares as the
Employee shall have then paid for and as are specified in the Notice
of Exercise of Option. Upon the request of the Corporation the
Employee shall present this agreement to it for the appropriate
endorsement upon any exercise of the Option.
4. TAX WITHHOLDING
At the time the Option is exercised, in whole or in part, or at
any time thereafter as requested by the Corporation, the Employee
hereby authorizes the withholding from payroll and any other amounts
payable to the Employee, and otherwise agrees to make adequate
provision for any amounts required to satisfy the tax withholding
obligations, if any, of the Corporation or a Subsidiary which arise in
connection with the Option, including, without limitation, obligations
arising upon (i) the exercise, in whole or in part, of the Option, (ii)
the transfer, in whole or in part, of any Optioned Shares acquired upon
exercise of the Option, (iii) the operation of any law or regulation
providing for the imputation of interest, or (iv) the lapsing of any
restriction with respect to any Optioned Shares acquired upon exercise
of the Option. The Option is not exercisable and the Corporation shall
have no obligation to issue a certificate for such Optioned Shares
unless such tax withholding obligations are satisfied.
5. NO OBLIGATION ON EMPLOYEE
Nothing herein contained or done pursuant hereto shall obligate the
Employee to purchase and/or pay for any Optioned Shares except those
Optioned Shares in respect of which the Employee shall have
exercised his or her Option hereunder in accordance with the terms
hereof.
6. LEGENDS
The Corporation may at any time place legends referencing any
applicable securities law restrictions on all certificates representing
the Optioned Shares subject to the provisions of this Option Agreement.
The Employee shall, at the request of the Corporation, promptly present
to the Corporation any and all certificates representing shares
acquired pursuant to the Option in the possession of the Employee in
order to carry out the provisions of this Section.
7. PUBLIC OFFERING
In the event of any underwritten public offering (including an
initial public offering), of shares made by the Corporation, if so
required by the underwriter, the Employee shall not offer, sell,
contract to sell, pledge, hypothecate, grant any option to purchase or
make any short sale of, or otherwise dispose of any of the Optioned
Shares or any rights to acquire the Optioned Shares for such period of
time from and after the completion of the public offering as may be
established by the underwriter for such public offering; provided,
however, that such period of time shall not exceed 180 days from the
completion of the public offering. The Employee shall be subject to this
section only if the officers and directors of the Corporation are also
subject to similar arrangements.
8. NOTICE
8.1 Any notice delivered or to be delivered or given by either party
to the other shall be sufficiently given or delivered if delivered
personally or sent by registered mail prepaid, addressed to the
party at the addresses hereinafter set out and shall be deemed to
have been received on the third business day following the date of
mailing thereof, provided that such notice shall not be deemed to
have been received or sent by registered mail at a time during
postal strikes, slow-downs or other similar delays, and in such
event a party delivering or giving such notice shall give or deliver
the same by hand to the party by whom it is to be received:
TO THE CORPORATION
OBJECTIME LIMITED
340 March Road
Kanata, Ontario
K2K 2E4
Attention: General Counsel
TO THE EMPLOYEE
'FIRSTNAME' 'LASTNAME'
'STREET1' 'STREET2'
'CITY', 'STATE'
'ZIP'
8.2 Either party may change the applicable address for service by
delivering written notice of the new address to the other party in
the manner set out above.
9. ACKNOWLEDGEMENT OF RECEIPT OF PLAN
The Employee hereby acknowledges receipt of a copy of the Plan.
The Employee further acknowledges and agrees that all decisions and
interpretations of the Board of Directors or the Committee with respect
to the Plan or the Option shall be conclusive and binding upon the
Employee.
10. GENERAL PROVISIONS
10.1 Time shall be of the essence of this agreement.
10.2 This agreement shall be governed and construed in accordance with
the laws of the Province of Ontario and the laws of Canada
applicable therein.
10.3 The parties hereto shall do all further acts and things and
execute all further documents reasonably required in the
circumstances to effect the provisions and intent of this agreement.
10.4 This agreement shall enure to the benefit of and be binding upon
the Employee and the Corporation and their respective heirs,
executors, administrators, successors and assigns.
10.5 This agreement, including the terms and conditions of the Plan,
constitutes the entire agreement between the Corporation and the
Employee pertaining to the subject matter hereof and supersedes all
prior agreements, understandings, negotiations, and discussions,
whether oral or written, between the Corporation and the Employee
pertaining to the subject matter hereof. No amendment of any
provision of this agreement shall be binding unless in writing and
executed by the Corporation and the Employee.
IN WITNESS WHEREOF this agreement has been executed by the parties
hereto.
SIGNED, SEALED AND DELIVERED
OBJECTIME LIMITED
By:
------------------------------
James McGee, President
------------------------------- ------------------------------
Witness First Name Last Name
SCHEDULE "A"
NOTICE OF EXERCISE OF OPTION
[DATE]
Attention: President
Dear Sir:
Re: Stock Option
Please be advised that I, being the holder
of an option to purchase Class 7 Special Shares of ObjecTime Limited
(the "Corporation") at the exercise price of CDN$ per share,
hereby exercise my option to purchase of such Class 7
Special Shares (the "Purchased Shares") of the Corporation. I enclose
my cheque payable to the Corporation for $
representing the full purchase price for the Purchased Shares. Please
arrange for delivery to me of a certificate representing the Purchased
Shares registered as follows:
-----------------------------------------------
Name in which certificate is to be registered
-----------------------------------------------
FULL ADDRESS
-----------------------------------------------
The undersigned hereby undertakes to comply, to the satisfaction of
the Corporation and its counsel, with all applicable requirements of
any stock exchange or exchanges upon which any securities of the
Corporation are from time to time listed and any applicable regulatory
authority or authorities.
Yours very truly,
-----------------------------------------------
Signature
-----------------------------------------------
Name (Please print)
OBJECTIME LIMITED
THIS CLASS "8" EMPLOYEE SHAREHOLDING AGREEMENT made the * day of *,
19*.
BETWEEN:
*
of the City of *,
in the Province of Ontario,
(hereinafter referred to as the "Employee")
AND:
ObjecTime Limited, a corporation
incorporated under the laws of
Canada
(hereinafter referred to as the "Corporation")
WHEREAS Employee has exercised an option granted to the Employee by the
Corporation and has thereby acquired certain Class 8 Shares of the
Corporation;
AND WHEREAS the option agreement entered into between the Employee and
the Corporation provides that the Employee shall, as a condition to the
issuance of the shares to the Employee by the Corporation pursuant to the
option agreement, enter into this agreement;
IN CONSIDERATION of the mutual covenants herein contained and the issue
to the Employee of the Employee's Shares, the parties hereto covenant and
agree as follows:
ARTICLE 1.00 -- DEFINITIONS AND INTERPRETATION
1.01 Definitions - As used in this Agreement, the following words and
phrases mean:
(a) "Agreement" means this Agreement and any written amendments
thereto executed by both the Corporation and the Employee;
(b) "Book Value of the Corporation" means the amount paid up in
respect of all Special Shares of the Corporation at the
relevant date together with the aggregate of the retained
earnings and of all other surplus accounts of the
Corporation, determined in accordance with generally accepted
accounting principles, after deducting therefrom all declared
but unpaid dividends, on any shares ranking in priority to
the Employee's Shares;
(c) "Book Value of the Employee's Shares" means the amount
obtained by multiplying the Book Value of the Corporation at
the relevant date by a fraction, the numerator of which is
the total number of the Employee's Shares and the denominator
of which is the total number of issued voting Special Shares
of all classes at the same date;
(d) "Call Notice" means the notice referred to in Section 2.01
hereof;
(e) "Date of Closing" means thirty (30) days after the delivery
of the Call Notice;
(f) "Employee's Shares" means the Class "8" Special Shares
allocated and issued to the Employee under the terms of this
Agreement and all such other shares of the Corporation into
which such Class "8" Special Shares may at any time be
converted, subdivided, consolidated or otherwise transformed;
(g) "Fair Market Value" means the amount determined under
Schedule "A" attached hereto;
(h) "Fair Market Value of the Employee's Shares" means the amount
determined under Schedule "A" attached hereto;
(i) "Founding Shareholders' Agreement" means the agreement among
Ian Engelberg, Garth Gullekson, James McGee, Branislav Selic
and ObjecTime Limited dated the 1st day of January, 1995 to
regulate the rights and obligations of the parties thereto;
(j) "Paid Up Amount of the Employee's Shares" means the actual
amount of money paid to the Corporation by the Employee for
the purchase of the Employee's Shares at the time of their
issue.
(k) "Place of Closing" means the offices of the solicitors for
the Corporation or such other place as may be agreed to by
the Corporation and the Employee;
(l) "Prime Bank Rate" means the commercial lending rate of
interest, expressed as an annual rate, which the
Corporation's principal bankers quote in Ottawa as its prime
lending rate which it charges to its commercial customers for
loans in Canadian funds;
(m) "Purchase Price" means in respect of the purchase and sale of
the Employee's Shares under this Agreement:
(i) the Paid Up Amount of the Employee's Shares, in respect
of all the Employee's Shares acquired by the Employee
during the two year period immediately prior to the
delivery date of the Call Notice;
(ii) the Book Value of the Employee's Shares, in respect of
all the Employee's Shares acquired by the Employee at
any time more than two (2) years and less than four (4)
years immediately prior to the delivery date of the
Call Notice;
(iii) the Fair Market Value of the Employee's Shares, in
respect of all the Employee's Shares acquired by the
Employee at any time more than four (4) years
immediately prior to the delivery date of the Call
Notice.
Provided that, if the amount determined under paragraphs (ii)
and (iii) above is less than the Paid Up Amount, the Purchase
Price shall be the Paid Up Amount.
For purposes of this Agreement and, in particular of the
calculation of the Purchase Price, the Employee's Shares
shall be deemed to have been acquired by the Employee on *.
(n) "Special Shares" means, collectively, all those issued Class
"1" Special Shares, Class "2" Special Shares, Class "3"
Special Shares, Class "4" Special Shares, Class "5" Special
Shares, Class "6" Special Shares, Class "7" Special Shares,
Class "8" Special Shares and any other issued Special Shares
created at any time by the Corporation with an attribute of
sharing pari passu with all other Special Shares;
(o) "Time of Closing" means 2:00 p.m. or such other time on the
Date of Closing as may be agreed to by the Employee and the
Corporation.
[NOTE: Articles 2, 3 and 4 shall be deleted from this agreement in the
event that Shares are acquired as a result of the exercise of an option
under paragraphs 11 or 12.1 of the ObjecTime Limited 1998 Canadian Stock
Option Plan or paragraphs 11 or 12.1 of the ObjecTime Limited 1998 US
Stock Option Plan.]
ARTICLE 2.00 -- "CALL" PRIVILEGE
2.01 Call Notice - At any time after the Employee either resigns from
his or her employment with the Corporation or is terminated for cause (as
defined in the ObjecTime Limited Stock Option Plans) by the Corporation,
the Corporation shall have the right to send a notice in writing to the
Employee requiring the Employee to sell to the Corporation all, but not
less than all, the Employee's Shares and upon receipt of such notice the
Employee shall be required to sell and the Corporation required to
purchase all the said Employee's Shares upon and subject to the terms and
conditions hereinafter set out.
2.02 Purchase Price - The Purchase Price shall be determined as of the
last day of the month in which the Call Notice shall have been given to
the Employee.
ARTICLE 3.00 -- GENERAL SALE PROVISIONS
3.01 Transfer Restriction - Except as provided in Section 2.01 hereof,
the Employee's Shares in the capital of the Corporation may not be
transferred except with the approval, in writing, of at least 75% of the
Special Shares held directly or indirectly by such of Ian Engelberg,
Garth Gullekson, James McGee and Branislav Selic as shall then be
employees of the Corporation.
3.02 Sale Provisions - The provisions of this Article shall apply to
any purchase of the Employee's Shares pursuant to the provisions of
Article 2.00 hereof.
3.03 Method of Payment - The Purchase Price shall be paid in five
equal annual instalments, without interest, commencing on the Date of
Closing and thereafter each instalment to be paid on each of the next
four anniversary dates of the Date of Closing, subject to the following
terms and conditions:
(a) if the purchase price is an amount less than TWENTY-FIVE
THOUSAND ($25,000.00) DOLLARS, it shall be paid in full,
subject to subparagraphs (b) and (c) immediately below, on
the Date of Closing;
(b) all amounts paid in any fiscal year on all purchases of
Special Shares of the Corporation under the Founding
Shareholders' Agreement, this Agreement and under all other
shareholding agreements with other employees or former
employees of the Corporation shall not in any event exceed
20% of the amount of Retained Earnings determined in the
accounts of the Corporation for the immediately preceding
fiscal year of the Corporation, which Retained Earnings shall
be calculated in accordance with generally accepted
accounting principles applied on a basis consistent with the
previous year;
(c) if the Retained Earnings for the immediately preceding fiscal
year shall be inadequate to pay all the amounts payable in
any year for the purchase of Special Shares of the
Corporation, the amount to be paid to the Employee in this
Agreement shall abate on a pro rata basis with all other
amounts required to be paid on the purchases of such Special
Shares of the Corporation and all amounts, in arrears,
required to be paid to the Employee under the terms of this
Agreement shall be carried over to and be paid in the next
year and such unpaid arrears shall bear interest at the Prime
Bank Rate until fully paid, provided that, again in each
year, the limit of 20% shall apply, and so on until all
amounts shall be paid to the Employee hereunder and, in
respect thereof, the oldest amounts owed to the Employee
under this Agreement shall be deemed to be paid first; and
(d) notwithstanding any other terms of this Agreement, any
balance due to the Employee under this Agreement may be
prepaid in whole or in part at any time or times without
notice or bonus.
3.04 Documents on Closing - At the Time of Closing, the Employee
shall:
(a) assign and transfer to the Corporation the Employee's Shares
and shall deliver the required share certificate(s) duly
endorsed for transfer into the Corporation's name;
(b) do all other things required in order to deliver good and
marketable title to the Employee's Shares to the Corporation
free and clear of any claims, liens and encumbrances
whatsoever, including, without limitation, the delivery of
any governmental releases and declarations of transmission.
Provided that, if at the Time of Closing the Employee's
Shares are not free and clear of all claims, liens and
encumbrances, the Corporation may, without prejudice to any
other rights which it may have, purchase the Employee's
Shares subject to such claims, liens and encumbrances. In
that event, the Corporation shall, at the Time of Closing,
assume all obligations and liabilities with respect to such
claims, liens and encumbrances and the Purchase Price payable
by the Corporation for the Employee's Shares shall be
satisfied, in whole or in part, as the case may be, by such
assumption. The amount so assumed shall reduce the Purchase
Price payable at the Time of Closing;
(c) deliver to the Corporation a release by the Employee of all
the Employee's claims against the Corporation with respect to
any matter or thing up to and including the Time of Closing
in respect of the Employee's position as a shareholder of the
Corporation, except for any claims which might arise out of
the transaction of purchase and sale herein contemplated;
(d) either provide the Corporation with evidence reasonably
satisfactory to the Corporation that the Employee is not then
a "non-resident" of Canada within the meaning of the Income
Tax Act (Canada) or provide the Corporation with a
certificate pursuant to Subsection 116(2) of the Income Tax
Act (Canada) with a certificate limit in an amount not less
than the Purchase Price for the Employee's Shares; provided
that if such evidence or certificate is not forthcoming, the
Corporation shall be entitled to make the payment of tax
required under Article 116 of the Income Tax Act (Canada) and
to deduct such payment from the Purchase Price for the
Employee's Shares.
3.05 Release of Employee - At the Time of Closing, the Corporation
shall deliver to the Employee a release by the Corporation of all its
claims against the Employee with respect to any matter or thing arising
as a result of the Employee being a shareholder of the Corporation,
except for any claims which might arise out of the wrongdoing of the
Employee or out of the transaction of purchase and sale herein
contemplated.
3.06 Power of Attorney - If, at the Time of Closing, the Employee
fails to complete the subject transaction of purchase and sale, the
Corporation shall have the right, if not in default under this Agreement,
without prejudice to any other rights which it may have, upon payment of
the Purchase Price payable to the Employee at the Time of Closing to the
credit of the Employee in the main branch of the Corporation's bankers in
the City of Ottawa, to execute and deliver, on behalf of and in the name
of the Employee, such deeds, transfers, share certificates, resignations
or other documents that may be necessary to complete the subject
transaction and the Employee hereby irrevocably appoints the Corporation
as the Employee's attorney with full power and authority available under
the Powers of Attorney Act, R.S.O. 1980, c. 386 to transfer the
Employee's Shares, and, in accordance with the said Act, the Employee
declares that this power of attorney may be exercised during any
subsequent legal incapacity on the Employee's part.
ARTICLE 4.00 -- EMPLOYMENT CONSIDERATION
4.01 Full Consideration - The Employee acknowledges that the Purchase
Price of the Employee's Shares as set out in this Agreement will be and
is a full and fair consideration for such Shares and, in the event that
the Corporation delivers to the Employee a Call Notice under Article 2
hereof, the Employee hereby agrees to accept the Purchase Price in full
and complete satisfaction of any and all rights which the Employee has in
respect of such Employee's Shares and shall release and forever discharge
the Corporation in respect of such Employee's Shares without further
demand, claim or complaint in respect thereof.
ARTICLE 5.00 MANDATORY SALE TO THIRD PARTY
5.01 If an independent third party shall make a bona fide offer
(an "Offer") to purchase all of the shares of the Corporation held by
all of the shareholders of the Corporation which the holders of shares
entitled to not less than 75% of the votes attaching to shares of the
Corporation wish to accept (the "Majority") (such offer to be in cash
or marketable securities readily convertible into cash) but which other
shareholders (the "Minority") do not wish to accept, and such Offer is
conditioned upon its acceptance by all the shareholders, the Majority
may, by notice in writing given to the Minority at any time 30 days or
more prior to the expiry of the Offer, require the Minority to elect to
sell their shares pursuant to the Offer or to purchase from the
Majority at the same price specified in the Offer all of the shares
held by the Majority, such election to be notified to the Majority not
less than 10 days prior to the expiry of the Offer. If the Minority
fail to make the required election within the time so limited they
shall be deemed to have elected to sell their shares pursuant to the
Offer. If the Minority elect to purchase the shares held by the
Majority, such purchase shall be completed and paid for not later than
30 days following such election.
ARTICLE 6.00 -- TERMINATION
6.01 Prior Agreements - All prior agreements between the Employee and
the Corporation regarding the Employee Shares, whether written or oral,
are hereby terminated.
6.02 Termination - Notwithstanding any other provision of this
Agreement to the contrary, this Agreement shall terminate and be of no
effect in the event the Corporation shall cease to be a private company
and, for the purpose thereof, "cease to be a private company" means the
issue under the Business Corporations Act (Ontario) of Articles of
Amendment to delete such of the following clauses as shall be in the
Articles of Incorporation, namely:
(a) any limitation on the number of shareholders;
(b) any restriction on the transfer of shares; and
(c) any prohibition against advertising or issuing shares to the
public.
ARTICLE 7.00 -- GENERAL CONTRACT PROVISIONS
7.01 Share Notation - All certificates for Class "8" Special Shares of
the Corporation representing the Employee's Shares shall have the
following legend endorsed thereon forthwith after the execution of this
Agreement:
"The shares represented by this certificate are
subject to an agreement dated the * day of *,
19*, made between the holder of this certificate
and ObjecTime Limited."
7.02 Share Deposit - The original share certificate for all Employee's
Shares shall be held in escrow safekeeping by the Secretary of the
Corporation and the Employee shall receive a deposit certificate signed
by the Secretary certifying the number of Class "7" Shares so held in
escrow safekeeping by the Secretary on behalf of the Employee.
7.03 Notices - All notices, requests, demands or other communications
by the terms hereof required or permitted to be given by one party to
another shall be given in writing by personal delivery or by registered
mail, postage prepaid, addressed to such other party or delivered to such
other party as follow:
or at such other address as may be given by any of them to the others in
writing from time to time and such notices, requests, demands or other
communications shall be deemed to have been received when delivered, or,
if mailed, forty-eight (48) hours after 12:01 a.m. on the day following
the day of the mailing thereof; provided that if any such notice,
request, demand or other communication shall have been mailed and if
regular mail service shall be interrupted by strikes or other
irregularities, such notices, requests, demands or other communications
shall be deemed to have been received forty-eight (48) hours after 12:01
a.m. on the day following the resumption of normal mail service.
7.04 Time - Time shall be of the essence of this Agreement and of
every part hereof and no extension or variation of this Agreement shall
operate as a waiver of this provision.
7.05 Entire Agreement - This Agreement constitutes the entire
agreement between the parties hereto with respect to the Employee's
Shares and its execution has not been induced by, nor do any of the
parties hereto rely upon or regard as material, any representations or
writings whatsoever not incorporated herein and made a part hereof.
7.06 Binding Nature - This Agreement shall enure to the benefit of and
be binding upon the parties hereto and their respective heirs, executors,
administrators, successors, assigns and legal representatives.
IN WITNESS WHEREOF the parties have duly executed this Agreement this *
day of *, 19*.
SIGNED, SEALED AND DELIVERED
in the presence of:
-------------------------- -----------------------------
ObjecTime Limited
By:
-----------------------------
Name: James McGee
Office: President c/s
By:
-----------------------------
Name: Jim Ablett
Office: Vice President, Finance
FAIR MARKET VALUE OF THE EMPLOYEE'S SHARES
The Fair Market Value of the Employee's Shares shall be determined
by the Board of Directors of the Corporation, having regard to the
following rules and procedures:
(a) that the fair market value of each of the Employee's Shares
shall be identical to the fair market value of each Special
Share of the Corporation without regard to separate classes
of Special Shares;
(b) that the Board of Directors shall carefully review and
examine each of the following sources of information in
determining fair market value, namely:
(i) the financial operating results in the current year
since the last fiscal year end;
(ii) the financial statements of the Corporation in the
three immediately preceding fiscal years, placing major
weight, in its determination, on the performance
results in the most recent fiscal year end;
(iii) the recent determinations, if any, of the fair market
value in Schedule "A" of the Founding Shareholders'
Agreement;
(iv) the recent valuations of the Corporation, if any, made
by a business valuator under the terms of the Founding
Shareholders' Agreement; and
(v) all other relevant considerations in determining the
fair value of the Corporation's Special Shares applied
in accordance with generally accepted valuation
principles; and
(c) that the fair market value of each of the Employee's Shares
as determined by the Board of Directors shall be confirmed as
to its reasonableness by the firm of chartered accountants
retained by the Corporation to review or to audit the
accounts, as the case may be, of the Corporation; and
(d) that the Purchase Price of the Employee's Shares being
purchased and sold under Article 2.00 shall be determined by
dividing the Fair Market Value of all the issued Special
Shares determined in the manner hereinbefore set out by all
the Special Shares then issued and outstanding, of all
classes and multiplying the resulting amount by the number of
the Employee's Shares being purchased and sold as aforesaid
provided that, for the purpose of determining the Fair Market
Value the calculation thereof and the determination of the
number of Special Shares and of the Employee's Shares shall
be made at the end of the month in which the Call Notice
shall have been made.
ObjecTime Limited
Option Agreement Amendment
To: 'FIRST NAME' 'LAST NAME'
(hereafter referred to as the "Optionee"
From: ObjecTime Limited
A corporation incorporated under the laws of Canada having its Head office at
340 martch Road, Kanata, Ontario (hereafter referred to as the "Corporation".)
Date: January 7, 1999
WHEREAS the Optionee and the Corporation entered into an option agreement dated
the 10th day of November, 1997 (the "Optionee Agreement") pursuant to the
ObjecTime Limited Canadian Option Plan (1997);
AND WHEREAS on January 7, 1999, the Corporation amended the ObjecTime Limited
Canadian Stock Option Plan (1997) to, among other things, provide for an
acceleration of the vesting schedule to the options granted under the Option
Agreement;
AND WHEREAS the Corporation wishes to provide the Optionee with the revised
vesting schedule for the Options which are subject to the Option Agreement;
AND WHEREAS capitalized terms used herin and not defined herein shall have the
meanings given to such terms in the Option Agreement;
NOW THEREFORE, in consideration of the mutual covenants herein and other good
and valuable consideration (the reciept and sufficiency of which is hereby
acknowledged by each of the parties), the parties hereto covenant and agree as
follows:
1. AMENDMENTS TO THE OPTION AGREEMENT. The Option Agreement is hereby amended
by deleting paragraph 1 and replacing it with the following new paragraph 1:
"1. OPTION TO PURCHASE SHARES
1.1 Pursuant to the ObjecTime Limited Canadian Stock Opotion Plan (1997),
established by the Corporation effective as of September 30, 1997, as amended
by the Corporation on January 7, 1999 (the "Plan"), the Corporation hereby
grants to the Optionee, subject to the terms and conditions hereinafter set
out, an irrevocable option (the "Option"), to purchase up to an aggregate of
'total options' Class A Preferred Shares (the "Optioned Shares") at the exercise
price (the "Exercise Price") specified below under the heading "Exercise
Price", commencing on the date set forth below under the heading Vesting
Commencement Date ("the Vesting Commencement Date"), until 5:00 p.m. (Ottawa
time) on the date specified below under the heading "Expiry Date" (the "Expiry
Date"):
OPTIONED SHARES EXERCISE PRICE VESTING EXPIRY DATE
COMMENCEMENT DATE
-------------- ----------------- ------------------ -------------
'Original Option' 'Exercise Price' 'Start Date' 'Expiry Date'
'FY96Option' 'FY96Price' 'FY96Grant' 'FY96Expiry'
'FY97Option' 'FY97Price' 'FY97Grant' 'FY97Expiry'
1.2 The Optionee may exercise and take up and pay for not more than 50% of the
Optioned Shares on or after the first anniversary of the Vesting Commencement
Date. After the first anniversary of the Vesting Commencement Date the balance
of the Optioned Shares shall vest in equal installments at the rate of 1/24
per month each month for the 24 months following the first anniversary of the
Vesting Commencement Date. If the number of Optioned Shares purchased by the
Optionee following an Exercise Date is less than the number of Optioned Shares
in respect of which the Option is then exercisable, the Optionee shall have the
right, at any time prior to the Expiry Date, to exercise the Option and
purchase such number of Optioned Shares in respect of which the Option was
exercisable but which were not purchased by the Optionee following any such
preceding Exercise Date.
1.3 At 5:00 p.m. (Ottawa time) on the Expiry Date the Option hereby granted
shall immediatley cease and terminate and be of no further force or effect
whatsoever as to such of the Opitoned Shares in respect of which the Option
hereby granted has not been exercised."
2. CONFIRMATION OF REMAINING PROVISIONS. Except as amended herein, all other
provisions of the Option Agreement shall continue in full force and effect.
IN WITNESS WHEREOF this amendment to the Option Agreement has been executed by
the parties hereto.
SIGNED, SEALED AND DELIVERED
ObjecTime Limited
By:______________________________
James McGee, President
OBJECTIME LIMITED
1998 U.S. STOCK OPTION PLAN
1. ESTABLISHMENT AND PURPOSE OF THE PLAN
A Stock Option Plan (hereinafter called the "Plan") for ObjecTime
Limited (the "Corporation") is hereby established to provide the
incentive inherent in share ownership (a) to the officers and other
employees of the Corporation and any present or future subsidiary (as
that term is defined in Section 424 of the United States Internal
Revenue Code (the "Code") hereinafter referred to as a "Subsidiary" or
"Subsidiaries") of the Corporation who reside in the United States, by
providing them with opportunities to purchase Class 8 Special Shares
(the "Shares") of the Corporation pursuant to options granted hereunder
which qualify as "incentive stock options" (hereinafter referred to as
an "ISO" or "ISO's") under Section 422(b) of the Code; and (b) to
directors, officers and employees of the Corporation and Subsidiaries
who reside in the United States, by providing them with opportunities
to purchase Shares of the Corporation pursuant to options granted
hereunder which do not qualify as ISOs ("Non-Qualified Stock
Option(s)" or "NSO(s)"). Both ISOs and NSOs are also referred to
herein individually as an "Option" and collectively as "Options".
2. TERM OF PLAN
The Plan shall commence effective as of April 1, 1998, and shall,
subject to (a) the earlier termination of the Plan by the Corporation
pursuant to the terms hereof, and (b) the approval of the Plan by the
shareholders as required under paragraph 19 hereof, continue and be in
effect until March 31, 2008 (except as to Options outstanding on that
date). If the approval of shareholders is not obtained prior to April
1, 1999 any grants of Options under the Plan made prior to that date
will be rescinded.
3. ADMINISTRATION OF THE PLAN
The board of directors (the "Board of Directors") of the Corporation,
or any committee thereof (the "Committee", provided that all references
in this Plan to the Committee shall mean the Board of Directors if no
Committee has been appointed), specifically designated by the Board of
Directors to be responsible therefor, shall administer the Plan and
shall have the authority to and may from time to time by resolution
determine (a) the number of Shares in respect of which Options shall be
granted under the Plan, (b) the employees of the Corporation and
Subsidiaries (from among the class of employees eligible under
paragraph 4 hereof to receive ISOs) to whom ISOs may be granted, and to
determine the individuals and entities (from among the class of
individuals and entities eligible under paragraph 4 hereof to receive
NSOs) to whom NSOs may be granted; (c) the time or times at which
Options may be granted; (d) the exercise price of Shares subject to
each Option, which price with respect to ISOs shall not be less than
the minimum specified in paragraph 7 hereof; (e) whether each Option
granted shall be an ISO or a NSO; (f) subject to paragraph 8 hereof,
the time or times when each Option shall become exercisable and the
duration of the exercise period; (g) whether restrictions are to be
imposed on Shares subject to Options, and the nature of such
restrictions, if any; (h) whether an Option Agreement may be amended or
modified, including an amendment to extend the post-termination
exercisability period to a period which is longer than is otherwise
provided for in the Plan or to provide that an Option shall not
terminate under paragraph 12.1 or 12.2 of the Plan; and (i) all other
matters necessary or advisable for the administration of the Plan. If
and once appointed, the Committee shall select one of its members as
its Chairman and shall hold its meetings at such time and place as it
shall deem advisable. A majority of the members of the Committee shall
constitute a quorum and all actions of the Committee shall be taken by
a majority of the members present at any meeting. Any action of the
Committee may be taken by an instrument or instruments in writing
signed by all the members of the Committee, and any action so taken
shall be as effective as if it had been passed by a majority of the
votes cast by the members of the Committee present at a meeting of such
members duly called and held.
Nothing contained in the Plan or any Option Agreement shall be
construed in any way so as to prevent the Corporation or any Subsidiary
from taking any corporate action which is deemed by the Corporation or
the Subsidiary to be appropriate or in its best interest, even if such
action would have an adverse effect on the Plan. The interpretation by
the Committee of any provision or provisions of the Plan or of any
Option granted hereunder shall be final, binding and conclusive;
provided, however, that an employee, officer or director shall have the
right not to participate in the Plan and any decision not to
participate herein shall not affect such employee's employment by, or
such director's engagement with, the Corporation. No member of the
Board of Directors or the Committee shall be liable for any action or
determination made in good faith with respect to the Plan or any Option
granted under the Plan, provided that a director shall not take any
action with respect to any Option granted to such director.
4. ELIGIBLE PARTICIPANTS
ISO's may be granted only to employees of the Corporation or a
Subsidiary. NSOs may be granted to any officer, director (whether or
not the director is a full time employee of the Corporation or a
Subsidiary) or employee of the Corporation or a Subsidiary or any
consultant to the Corporation or a Subsidiary.
5. NUMBER OF SHARES
The maximum number (the "Maximum Number") of Shares issuable pursuant
to the Plan is 1,250,000, subject to any amendment to such maximum
number pursuant to paragraph 19 hereof. In the event that any Option
granted hereunder shall expire or terminate for any reason whatsoever
without having been exercised in full, or shall cease to be exercisable
for any reason whatsoever in whole or in part, the unpurchased Shares
subject thereto shall again be available for the granting of Options in
respect thereto under the Plan. The number of Shares subject to option
in favour of any one person, together with any other Shares reserved
for issuance under any other plans to such person, shall not exceed 5%
of the total number of issued and outstanding Shares at the date of
grant of his Option.
6. AMENDMENT OR TERMINATION OF THE PLAN
The Board of Directors or the Committee shall have the unfettered right
to interpret the provisions of this Plan and to make such regulations
and to formulate such administrative provisions for carrying this Plan
into effect and to make such amendments to the Plan, the regulations or
administrative provisions as, from time to time, the Board of
Directors or the Committee deems appropriate in the best interests of
the Corporation. The Board of Directors may amend this Plan or adopt
alternative versions of this Plan as the Board of Directors deems
necessary or desirable to comply with the laws of, or to accommodate
the tax policies or customs of, foreign jurisdictions whose citizens or
residents may be granted Options hereunder. The Board of Directors
shall also have the unfettered right from time to time and at any time
to rescind or terminate the Plan as it shall deem advisable; provided,
however, that no such rescission or termination shall impair or change
the rights and Options theretofore granted under the Plan without the
prior written consent of the optionee or optionees affected thereby.
7. EXERCISE PRICE
7.1 The exercise price of the Shares purchased pursuant to the
Options granted hereunder shall be not be less than the fair market
value, as defined in paragraph 7.3 hereof, as of the date on which such
Options are granted. In the case of an Option granted to an eligible
person owning shares possessing more than 10% of the total combined
voting power of all classes of shares of the Corporation or a
Subsidiary, the exercise price of an Option shall be at least 110% of
fair market value of the Shares determined as of the date on which such
Options are granted. For the purpose of determining the percentage of
share ownership of the Corporation, the rules of section 424(d) of the
Code, or any successor provision thereto, shall be applicable.
7.2 Each eligible employee may be granted Options treated as ISOs
only to the extent that, in the aggregate under this Plan and all
incentive stock option plans of the Corporation and any Subsidiary,
ISOs do not become exercisable for the first time by such employee
during any calendar year with respect to Shares having a fair market
value (determined at the time the ISOs were granted) in excess of
$100,000. The Corporation intends to designate any Options granted in
excess of such limitation (determined in the order in which such
Options were granted) as NSOs.
7.3 "Fair market value" for the purposes of determining the exercise
price of an Option granted hereunder shall be determined as follows:
(a) If at the time that the Option is granted under the Plan
the Shares are listed or posted for trading on the Toronto Stock
Exchange (the "TSE"), fair market value shall mean the closing price
of the Shares on the TSE (or, if the Shares are not listed on the
TSE, fair market value shall mean the closing price on such exchange
or market in Canada on which the Shares are listed or posted for
trading as may be selected by the Committee) on the trading day
immediately preceding the date on which the Option is granted, and
if no Shares have been traded on such day the exercise price shall
be established on the same basis on the last previous day for which
a trade was reported by such stock exchange or market. In the event
that the Shares are not listed or posted for trading on a stock
exchange or market in Canada at the time of the granting of an
Option hereunder, the fair market value shall mean the last trading
price of the Shares on the National Association of Securities
Dealers Quotations Systems ("NASDAQ"), or such other market or stock
exchange in the United States on which the Shares are listed or
posted for trading as may be selected by the Committee, on the
trading day immediately preceding the date on which the Option is
granted, and if no Shares have been traded on such day the exercise
price shall be established on the same basis on the last previous
day for which a trade was reported by such market or stock exchange.
(b) If the Shares are not publicly traded at the time that the
Option is granted under the Plan, fair market value shall mean the
value determined in good faith by the Board of Directors, in its
sole discretion.
8. TERM OF OPTIONS
8.1 Term. Subject to the earlier termination of the Option as
provided herein, each Option granted hereunder shall be for a term
specified by the Committee and set forth in the Option Agreement,
provided that the term shall not exceed (a) ten years from the date of
grant in the case of Options generally, and (b) five years from the
date of grant in the case of ISOs granted to any employee owning shares
possessing more than 10% of the total combined voting power of all
classes of shares of the Corporation or a Subsidiary as determined in
paragraph 7.1 hereof (in each case the "Expiry Date").
8.2 Exercise Dates. Unless the Committee determines otherwise, each
Option shall be exercisable in whole or in part, at the following rate:
(a) 50% of the total number of Shares subject to the Option shall be
exercisable on the first anniversary of the date of grant of the
Option, and (b) thereafter at a rate of 1/24th per month of an amount
equal to 50% of the total number of Shares subject to the Option (each
such date is hereinafter referred to as an "Exercise Date").The Shares
in respect of which the Option shall have become exercisable may be
purchased, in whole or in part, at any time, or from time to time,
until the expiration or termination of the Option. The Committee shall
have the right to accelerate the Exercise Date or Exercise Dates for
some or all of the Shares subject to an Option; provided that the
Committee shall not accelerate the Exercise Date of any instalment of
an ISO (which was not previously converted to an NSO) if such
acceleration would violate the annual vesting limitation contained in
Section 422(c) of the Code.
9. OPTION AGREEMENT
Each optionee shall execute an option agreement (an "Option Agreement")
which has been duly executed and delivered by the Corporation to the
optionee prior to the grant of any Option to an optionee becoming
effective. The terms and conditions of the Option Agreement need not be
the same in each case and may be changed from time to time by the
Committee. The Board of Directors may from time to time confer
authority and responsibility on one or more of its members and/or one
or more officers of the Corporation to execute and deliver Option
Agreements. The proper officers of the Corporation are authorized and
directed to take any and all action necessary or advisable from time to
time to carry out the terms of the Option Agreements.
10. ACCELERATION OF OPTION
10.1 Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Corporation, the Committee shall
notify each optionee as soon as practicable prior to the effective date
of such proposed transaction. The Committee in its discretion may
provide for an optionee to have the right to exercise his or her Option
until ten days prior to such transaction as to all of the optioned
Shares subject to the Option, including Shares in respect of which the
Option would not otherwise be exercisable. In addition, the Committee
may provide that any repurchase right of the Corporation applicable to
any Shares purchased upon the exercise of an Option shall lapse as to
all such Shares, provided the proposed dissolution or liquidation takes
place at the time and in the manner contemplated. To the extent it has
not been previously exercised, an Option will terminate immediately
prior to the consummation of such proposed action.
10.2 Merger, Amalgamation, Share Sale or Asset Sale. In the event of a
merger, amalgamation, or consolidation of the Corporation with or into
another corporation or entity, or an offer to purchase Shares having
attached thereto greater than 50% of the votes attaching to all of the
outstanding shares of the Corporation or the sale of all or
substantially all of the assets of the Corporation, each outstanding
Option shall be assumed or an equivalent option or right shall be
substituted therefor by the successor corporation or entity or a parent
or Subsidiary of the successor corporation or entity. In the event
that the successor corporation or entity or the parent or Subsidiary of
the successor corporation or entity refuses to assume the Option or to
substitute for the Option an equivalent option or right, the optionee
shall have the right to exercise the Option as to all of the optioned
Shares subject to the Option, including Shares as to which the Option
would not otherwise be exercisable. If an Option becomes fully
exercisable in lieu of assumption or substitution in accordance with
the provisions of this paragraph 10.2, the Committee shall notify the
optionee in writing or electronically that the Option shall be fully
vested and exercisable for a period of 15 days from the date of such
notice, and the Option shall terminate upon the expiration of such
period.
11. DEATH OR DISABILITY OF OPTIONEE
Notwithstanding anything contained herein to the contrary, In the event
that prior to the termination or expiration of an Option an optionee
dies or becomes permanently and totally disabled while engaged as an
employee of the Corporation, any Option granted hereunder will not
terminate and will continue to vest until the Expiry Date. Any vested
Options may be exercised by the optionee or the legal personal
representative(s) or heir(s) of the optionee, as the case may be, at
any time and from time to time prior to the Expiry Date, after which
date the Option or Options shall forthwith expire and terminate and be
of no further force or effect whatsoever, and the Shares in respect of
which the Option is not exercised shall revert to the Plan.
For greater certainty, any optionee who is deemed to be an employee of
the Corporation pursuant to any medical or disability plan of the
Corporation shall be deemed to be an employee for the purposes of this
Plan.
12. TERMINATION OF EMPLOYMENT OF OPTIONEE
12.1 Without Cause. In the event that an optionee's employment with
the Corporation or a Subsidiary is terminated without Cause (as defined
in paragraph 12.4 hereof) before the exercise in full of the Option
granted to such optionee, such optionee shall be entitled to exercise
the Option to the extent of the Shares in respect of which such Option
is exercisable on the date on which notice of termination is delivered
to the optionee by the Corporation or a Subsidiary at any time
beginning on such date and ending on the earlier of (a) 90 days
following an initial public offering of shares by the Corporation (or
90 days following the expiry of any contractual or other restriction on
the resale of the shares relating to such initial public offering,
whichever is later), (b) two years following the date on which notice
of termination is delivered to the optionee by the Corporation or a
Subsidiary, and (c) the Expiry Date of the Option, and thereafter the
Option granted to such optionee shall expire and all rights to purchase
Shares pursuant to the Option granted to such optionee shall cease and
expire and be of no further force or effect. Any Shares in respect of
which the Option is not exercised during the period referred to above
shall revert to the Plan. If on the date on which notice of termination
is delivered to the optionee by either the Corporation or a Subsidiary
the Option is not exercisable in respect of all of the Shares, the
number of Shares in respect of which the Option is not exercisable on
such date shall revert to the Plan effective as of such date.
12.2 Resignation by Optionee. In the event that an optionee
resigns or terminates his or her employment with the Corporation or a
Subsidiary, before the exercise in full of the Option granted to such
optionee, such optionee shall have 90 days from the date on which
notice of termination is delivered to the Corporation or a Subsidiary
by the optionee (or until the Expiry Date of the Option, whichever is
less), to exercise the Option to the extent of the Shares in respect of
which such Option is exercisable on such date, and thereafter the
Option granted to such optionee shall expire and all rights to purchase
Shares pursuant to the Option granted to such optionee shall cease and
expire and be of no further force or effect. Any Shares in respect of
which the Option is not exercised within the 90 day period referred to
above shall revert to the Plan. If on the date on which notice of
termination is delivered by the optionee to the Corporation or a
Subsidiary the Option is not exercisable in respect of all of the
Shares, the number of Shares in respect of which the Option is not
exercisable on such date shall revert to the Plan effective as of such
date.
12.3 Committee or Board Discretion. Notwithstanding paragraphs
12.1and 12.2 of this Plan, the Committee may, in its sole and
unfettered discretion, extend the post-termination exercise period
provided for in paragraphs 12.1 and 12.2, provided that such period
does not extend beyond the Expiry Date. Further, an Option Agreement
may provide, or the Committee may, in its sole and unfettered
discretion, amend or modify an Option Agreement (either before or after
the delivery of a notice of termination of employment to or by an
optionee) to provide: (a) that an Option does not terminate upon the
delivery of a notice of termination to an optionee by the Corporation
under paragraph 12.1 hereof or to the Corporation or a Subsidiary by an
optionee under paragraph 12.2 hereof, and (b) that the Exercise Date
for some or all of the Shares subject to the Option is accelerated to
an earlier date and that the optionee shall have a specified period of
time in which to exercise the Option to the extent of the Shares in
respect of which the Option is exercisable pursuant to the Option
Agreement or the Option Agreement as amended in accordance with this
paragraph.
12.4 For Cause. If the employment of an optionee is terminated by
the Corporation for Cause, such optionee's Options shall terminate on
the date (the "Termination Date") on which written notice of such
termination is given to the optionee by the Corporation and all rights
to purchase Shares pursuant to the Option granted to such optionee
shall cease and expire and be of no further force or effect. All Shares
in respect of which the Option was granted shall revert to the Plan
effective as of the Termination Date. "Cause" shall include, but shall
not be limited to, conduct involving one or more of the following: (i)
the substantial and continuing failure of an optionee, after notice
thereof, to render services to the Corporation or any Subsidiary in
accordance with the terms or requirements of his or her employment;
(ii) disloyalty, gross negligence, wilful misconduct, dishonesty or
breach of fiduciary duty to the Corporation or any Subsidiary; (iii)
the commission of an act of embezzlement or fraud; (iv) the
unauthorized disclosure of any trade secret or confidential information
of the Corporation or any Subsidiary; (v) the commission of an act
which constitutes unfair competition with the Corporation or any
Subsidiary or which induces any customer or supplier to breach a
contract with the Corporation or any Subsidiary or (vi) any other
conduct recognized by the laws of the Province of Ontario as
constituting just cause for dismissal.
12.5 General. Nothing in the Plan or in any Option Agreement entered
into between the Corporation and an employee shall be deemed to give
any optionee the right to continued employment by the Corporation or
any Subsidiary for any period of time and nothing contained herein
shall affect the right of the Corporation or any Subsidiary to
terminate, with or without Cause, an optionee's employment with the
Corporation or a Subsidiary at any time. The vesting of shares
pursuant to an Option Agreement is only earned by the optionee by
continuing as an employee of the Corporation or a Subsidiary or by
continuing to be a director or officer of one of the foregoing and not
through the act of being hired, being appointed a director, being
granted an Option or purchasing Shares pursuant to the exercise of an
Option. Options shall not be affected by any change of employment so
long as the optionee continues to be employed by the Corporation or any
Subsidiary or continues to be a director or officer of one of the
foregoing. A leave of absence for which the prior approval of the
Corporation has been obtained shall not be considered an interruption
or termination of employment under the Plan. Nothing in the Plan shall
be construed so as to give any consultant, director, officer or
employee any right to be granted an Option.
13. EXERCISE OF OPTION
13.1 Notice of Exercise of Option. Subject to the provisions of the
Plan, the Options granted hereunder may be exercised from time to time
by the delivery to the Corporation at its head office, or such transfer
agent as the Corporation may from time to time designate, of a written
notice (the "Notice of Exercise of Option") in the form attached to the
Option Agreement, specifying the number of Shares with respect to which
the Option is being exercised and accompanied by payment in full of the
purchase price of the Shares then being purchased (a) in cash or
certified cheque in favour of the Corporation, or (b) at the discretion
of the Committee, by the delivery of Shares having fair market value
equal as of the date of the exercise of the Option to the cash exercise
price of the Option, or (c) by the delivery of such other lawful
consideration as is approved by the Board of Directors. The form of
consideration (for consideration other than cash) shall be subject to
the approval of the Board of Directors at the time of the exercise of
the Option. The Notice of Exercise of Option shall contain the
optionee's undertaking to comply, to the satisfaction of the
Corporation and its counsel, with all applicable requirements of any
stock exchange or exchanges upon which any securities of the
Corporation are from time to time listed and any applicable regulatory
authority or authorities.
13.2 Employee Shareholding Agreement. Unless the Corporation is a
Reporting Issuer (as defined in the Securities Act (Ontario)) or has
become an offering corporation (as defined in the Business Corporations
Act (Ontario)) at the time of exercise of an Option, the issuance of
Shares upon the exercise of an Option shall be conditional upon an
optionee executing an employee shareholding agreement in the form
attached hereto as Schedule "A", as such agreement may be amended from
time to time by the Board of Directors; provided that, in the event of
the exercise of an Option under paragraphs 11, or 12.1 hereof, the
employee shareholding agreement attached hereto as Schedule "A" shall
not include the call right or related provisions set out in Articles 2,
3 or 4 thereof.
14. NON-TRANSFERABILITY OF OPTIONS
Except as specifically provided herein, the rights of any optionee
under the Plan are personal to the optionee and are not transferable or
assignable other than by will or the laws of descent and distribution,
and except as provided herein are only exercisable by the optionee. The
obligations of each optionee pursuant to the Plan and any Option shall
be binding on his or her heirs, executors and administrators.
15. COMPLIANCE WITH SECURITIES LAWS
The grant of Options and the issuance of Shares upon the exercise of
Options shall be subject to compliance with all applicable requirements
of federal, provincial or foreign law with respect to such securities.
Options may not be exercised if the issuance of Shares upon the
exercise of the Option would constitute a violation of any applicable
federal, provincial or foreign securities laws or other law or
regulations or the requirements of any stock exchange or market system
upon which the Shares may then be listed. The inability of the
Corporation to obtain from any regulatory body having jurisdiction the
authority, if any, deemed by the Corporation's legal counsel to be
necessary to the lawful issuance and sale of any Shares hereunder shall
relieve the Corporation of any liability in respect of the failure to
issue or sell such Shares as to which such requisite authority shall
not have been obtained. As a condition to the exercise of any Option,
the Corporation may require the optionee to satisfy any qualifications
that may be necessary or appropriate, to evidence compliance with any
applicable law or regulation and to make any representation or warranty
with respect thereto as may be requested by the Corporation.
16. CHANGES IN THE CAPITAL OF THE CORPORATION
16.1 Subdivision of Shares. In the event of any subdivision or
subdivisions of the Shares into a greater number of Shares at any time
while an Option is outstanding, including the issue of Shares to the
holders of its outstanding Shares by way of a stock dividend or
dividends, the Corporation will thereafter deliver at the time of
exercise of the Option, in lieu of the number of Shares in respect of
which the Option is then being exercised, such greater number of Shares
as the optionee would have been entitled as a result of such
subdivision or subdivisions of the Shares or such stock dividend had
the Option been exercised prior to the date of such subdivision or
stock dividend, without the optionee making any additional payment or
giving any other consideration therefor.
16.2 Consolidation of Shares. In the event of any consolidation or
consolidations of the Shares into a lesser number of Shares at any time
while an Option is outstanding, the Corporation will thereafter deliver
and the optionee shall accept, at the time of the exercise of the
Option, in lieu of the number of Shares in respect of which the Option
is then being exercised, such lesser number of Shares as the optionee
would have been entitled as a result of such consolidation or
consolidations had the Option been exercised prior to such
consolidation or consolidations.
16.3 Reclassification or Conversion of Shares. In the event of any
change, reclassification or conversion of the Shares into another class
of shares of the Corporation at any time while an Option is
outstanding, the Corporation shall thereafter deliver and the optionee
shall accept, at the time of the exercise of an Option, in lieu of the
number of Shares in respect of which the Option is being exercised, the
number of shares of the Corporation of the appropriate class or classes
as the optionee would have been entitled as a result of such change,
reclassification or conversion had the Option been exercised prior to
such change, reclassification or conversion .
16.4 No Fractional Shares. Notwithstanding the foregoing, no
fractional shares shall be issued pursuant to the exercise of any
Option.
17. RIGHTS OFFERINGS
If at any time the Corporation grants to the holders of Shares rights
to subscribe for and purchase pro rata additional securities of the
Corporation or of any other corporation or entity, there shall be no
adjustments made to the number of Shares or other securities subject to
the Option in consequence thereof and the Option of an optionee shall
remain unaffected and an optionee shall not be entitled to participate
in such rights offering in respect of any Shares the Option for which
has not been exercised at the time of the rights offering.
18. PROVISION OF INFORMATION
At least annually, copies of the Corporation's balance sheet and income
statement for the most recently completed fiscal year shall be made
available to each optionee to whom Options have been granted under this
Plan. The Corporation shall not be required to provide such
information to persons whose duties in connection with the Corporation
assure them access to equivalent information.
19. SHAREHOLDER APPROVAL
The Plan or any increase in the Maximum Number of Shares issuable
thereunder as provided in paragraph 5 of this Plan shall be approved by
the shareholders of the Corporation within 12 months of the date of
adoption thereof by the Board of Directors. Options granted prior to
shareholder approval of the Plan or in excess of the Maximum Number
previously approved by the shareholders shall become exercisable no
earlier than the date of shareholder approval of the Plan or such
increase in the Maximum Number, as the case may be.
20. NO RIGHTS AS A SHAREHOLDER
The optionee shall have no rights whatsoever as a shareholder in
respect of any of the optioned Shares (including any right to receive
dividends or other distributions therefrom or thereon) other than
optioned Shares in respect of which the optionee shall have exercised
such optionee's Option to purchase hereunder and which the optionee
shall have taken up and paid for and for which a share certificate has
been issued to the optionee.
21. NO REPRESENTATION OR WARRANTY
The Corporation makes no representation or warranty as to the future
market value of any Shares issued in accordance with the provisions of
this Plan.
22. GOVERNING LAW
The Plan is established under the laws of the Province of Ontario and
the rights of all parties and the construction and effect of every
provision of the Plan shall be according to the laws of the Province of
Ontario.
IN WITNESS WHEREOF the Board of Directors of OBJECTIME LIMITED has adopted
this Amended and Restated Plan this 7th day of January, 1999.
OBJECTIME LIMITED
By: c/s
--------------------------------
James McGee, President
OBJECTIME LIMITED
OPTION AGREEMENT
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OF THE UNITED STATES OF AMERICA OR UNDER THE SECURITIES LAWS OF
THE STATE OF CALIFORNIA OR OF ANY OTHER STATE. ANY RESALE OF THESE
SECURITIES IS RESTRICTED. THESE SECURITIES MAY NOT BE RESOLD,
TRANSFERRED, PLEDGED OR HYPOTHECATED WITHOUT COMPLIANCE WITH APPLICABLE
PROVINCIAL SECURITIES LAWS IN CANADA, OR IN THE CASE OF TRANSACTIONS
WITH OR BY RESIDENTS OF THE UNITED STATES OF AMERICA, UNLESS THEY ARE
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND UNDER APPLICABLE STATE
SECURITIES LAWS, OR UNLESS AN EXCEPTION FROM SUCH REGISTRATION IS
AVAILABLE. LEGAL ADVICE SHOULD BE OBTAINED BEFORE ANY RESALE OF THESE
SECURITIES.
THIS OPTION AGREEMENT is made as of the 'BRDAPPROVAL'.
BETWEEN:
OBJECTIME LIMITED,
A corporation incorporated under the laws of Canada having
its head office at 340 March Road, Kanata, Ontario
(hereinafter referred to as the "Corporation")
AND:
'FIRSTNAME' 'LASTNAME',
(hereinafter referred to as the "Optionee")
IN CONSIDERATION of the mutual covenants herein and other good and
valuable consideration (the receipt and sufficiency of which is hereby
acknowledged by each of the parties), the parties hereto covenant and
agree as follows:
1. OPTION TO PURCHASE SHARES
1.1 Pursuant to the ObjecTime Limited 1998 U.S. Stock Option Plan
(the "Plan") established by the Corporation effective as of August
14, 1998, the Corporation hereby grants to the Optionee, subject to
the terms and conditions hereinafter set out, an irrevocable option
(the "Option") to purchase up to an aggregate of 'OPTION98' Class 8
Special Shares (the "Optioned Shares") at the exercise price (the
"Exercise Price") specified below under the heading "Exercise
Price", commencing on the date set forth below under the heading
Vesting Commencement Date ("the Vesting Commencement Date"), until
5:00 p.m. (Ottawa time) on the date specified below under the
heading "Expiry Date" (the "Expiry Date"):
OPTIONED SHARES VESTING EXERCISE EXPIRY DATE
COMMENCEMENT PRICE (CDN $)
DATE
- ----------------- --------------- ---------------- ---------------
<<FY98OPTION>> <<VESTCOMDATE>> <<$0.65>> <<EXPDATE>>
1.2 The Optionee may exercise and take up and pay for not more
than 50% of the Optioned Shares on or after the first anniversary of
the Vesting Commencement Date. After the first anniversary of the
Vesting Commencement Date the balance of the Optioned Shares shall
vest in equal monthly installments at the rate of 1/24 per month
each month for the 24 months following the first anniversary of the
Vesting Commencement Date. If the number of Optioned Shares
purchased by the Optionee following an Exercise Date is less than
the number of Optioned Shares in respect of which the Option is
then exercisable, the Optionee shall have the right, at any time
prior to the Expiry Date, to exercise the Option and purchase such
number of Optioned Shares in respect of which the Option was
exercisable but which were not purchased by the Optionee following
any such preceding Exercise Date.
1.3 At 5:00 p.m. (Ottawa time) on the Expiry Date the Option
hereby granted shall immediately cease and terminate and be of no
further force or effect whatsoever as to such of the Optioned Shares
in respect of which the Option hereby granted has not then been
exercised.
1.4 The Option is intended to be an incentive stock option
within the meaning of section 422 of the United States Internal
Revenue Code.
2. INCORPORATION OF TERMS OF THE PLAN
The terms and conditions relating to the Option contained in the
Plan are hereby incorporated by reference and shall be deemed to be
contained herein as if fully recited herein. In the event of any
conflict between the terms and conditions of the Plan and the terms
and conditions of this agreement, the terms and conditions of the
Plan shall prevail. Unless otherwise specified, capitalized terms
used herein and not defined herein shall have the meaning given to
such terms in the Plan.
3. EXERCISE OF OPTION
Subject to the terms and conditions hereof, the Option hereby
granted shall be exercisable after the Exercise Date and prior to
the Expiry Date by the Optionee delivering a notice (the "Notice of
Exercise of Option") in the form attached hereto as Schedule "A" to
the Corporation, or such transfer agent as the Corporation may from
time to time designate. The Notice of Exercise of Option shall
specify therein the number of Optioned Shares in respect of which
the Option is being exercised. Upon any such exercise of this
Option, together with payment in full of the Exercise Price, the
Corporation shall forthwith deliver to the Optionee within l0
business days following receipt of any such Notice of Exercise of
Option, a certificate or certificates in the name of the Optionee
representing in the aggregate such number of Optioned Shares as the
Optionee shall have then paid for and as are specified in the Notice
of Exercise of Option. Upon the request of the Corporation the
Optionee shall present this agreement to it for the appropriate
endorsement upon any exercise of the Option.
4. TAX WITHHOLDING
At the time the Option is exercised, in whole or in part, or at
any time thereafter as requested by the Corporation, the Optionee
hereby authorizes the withholding from payroll and any other amounts
payable to the Optionee, and otherwise agrees to make adequate
provision for any amounts required to satisfy the federal, state,
local and foreign tax withholding obligations, if any, of the
Corporation or a Subsidiary which arise in connection with the Option,
including, without limitation, obligations arising upon (i) the
exercise, in whole or in part, of the Option, (ii) the transfer, in
whole or in part, of any Optioned Shares acquired upon exercise of the
Option, (iii) the operation of any law or regulation providing for the
imputation of interest, or (iv) the lapsing of any restriction with
respect to any Optioned Shares acquired upon exercise of the Option.
The Optionee is cautioned that the Option is not exercisable and the
Corporation shall have no obligation to issue a certificate for such
Optioned Shares unless such tax withholding obligations are satisfied.
5. NO OBLIGATION ON OPTIONEE
Nothing herein contained or done pursuant hereto shall obligate the
Optionee to purchase and/or pay for any Optioned Shares except those
Optioned Shares in respect of which the Optionee shall have
exercised his or her Option hereunder in accordance with the terms
hereof.
6. LEGENDS
The Corporation may at any time place legends referencing any
applicable federal, state or foreign securities law restrictions on
all certificates representing the Optioned Shares subject to the
provisions of this Option Agreement. The Optionee shall, at the
request of the Corporation, promptly present to the Corporation any
and all certificates representing shares acquired pursuant to the
Option in the possession of the Optionee in order to carry out the
provisions of this Section. Unless otherwise specified by the
Corporation, legends placed on such certificates may include, but
shall not be limited to, the following:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS THERE IS AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH
SECURITIES, THE SALE IS MADE IN ACCORDANCE WITH RULE 144 OR RULE 701
UNDER THE ACT, OR THE CORPORATION RECEIVES AN OPINION OF COUNSEL FOR
THE HOLDER OF THESE SECURITIES REASONABLE SATISFACTORY TO THE
CORPORATION, STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR
HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF SUCH ACT."
"THE SHARES EVIDENCED BY THIS CERTIFICATE WERE ISSUED BY THE
CORPORATION TO THE REGISTERED HOLDER UPON EXERCISE OF AN INCENTIVE
STOCK OPTION AS DEFINED IN SECTION 422 OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED. THE REGISTERED HOLDER SHALL HOLD ALL SHARES
PURCHASED UNDER THE INCENTIVE STOCK OPTION IN THE REGISTERED
HOLDER'S NAME (AND NOT IN THE NAME OF ANY NOMINEE) PRIOR TO THIS
DATE OR UNTIL TRANSFERRED AS DESCRIBED ABOVE."
7. PUBLIC OFFERING
In the event of any underwritten public offering (including an
initial public offering, of shares) made by the Corporation pursuant to
an effective registration statement filed under the Securities Act of
1933, the Optionee shall not offer, sell, contract to sell, pledge,
hypothecate, grant any option to purchase or make any short sale of, or
otherwise dispose of any of the Optioned Shares or any rights to
acquire the Optioned Shares for such period of time from and after the
completion of the public offering as may be established by the
underwriter for such public offering; provided, however, that such
period of time shall not exceed 180 days from the date of the
completion of the public offering. The Optionee shall be subject to
this section only if the officers and directors of the Corporation are
also subject to similar arrangements.
8. NOTICE
8.1 Any notice delivered or to be delivered or given by either party
to the other shall be sufficiently given or delivered if delivered
personally or sent by registered mail prepaid, addressed to the
party at the addresses hereinafter set out and shall be deemed to
have been received on the third business day following the date of
mailing thereof, provided that such notice shall not be deemed to
have been received or sent by registered mail at a time during
postal strikes, slow-downs or other similar delays, and in such
event a party delivering or giving such notice shall give or deliver
the same by hand to the party by whom it is to be received:
TO THE CORPORATION
OBJECTIME LIMITED
340 March Road
Kanata, Ontario
K2K 2E4
Attention: General Counsel
TO THE OPTIONEE
'FIRSTNAME' 'LASTNAME'
'STREET'
'STREET2'
'CITY', 'PROVINCE'
'POSTAL'
8.2 Each party shall notify the other immediately following any
change of the address for service provided in paragraph 8.1 hereof
by delivering written notice of the new address to the other party
in the manner set out above.
9. ACKNOWLEDGEMENT OF RECEIPT OF PLAN
The Optionee hereby acknowledges receipt of a copy of the Plan.
The Optionee further acknowledges and agrees that all decisions and
interpretations of the Board of Directors or the Committee with respect
to the Plan or the Option shall be conclusive and binding upon the
Optionee.
10. GENERAL PROVISIONS
10.1 Time shall be of the essence of this agreement.
10.2 This agreement shall be governed and construed in accordance with
the laws of the Province of Ontario and the laws of Canada
applicable therein.
10.3 The parties hereto shall do all further acts and things and
execute all further documents reasonably required in the
circumstances to effect the provisions and intent of this agreement.
10.4 This agreement shall enure to the benefit of and be binding upon
the Optionee and the Corporation and their respective heirs,
executors, administrators, successors and assigns.
10.5 This agreement, including the terms and conditions of the Plan,
constitutes the entire agreement between the Corporation and the
Optionee pertaining to the subject matter hereof and supersedes all
prior agreements, understandings, negotiations, and discussions,
whether oral or written, between the Corporation and the Optionee
pertaining to the subject matter hereof. No amendment of any
provision of this agreement shall be binding unless in writing and
executed by the Corporation and the Optionee.
IN WITNESS WHEREOF this agreement has been executed by the parties
hereto.
SIGNED, SEALED AND DELIVERED
OBJECTIME LIMITED
By:
-------------------------
Tom Reaume, Secretary
------------------------- -------------------------
Witness 'FIRSTNAME' 'LASTNAME'
SCHEDULE "A"
NOTICE OF EXERCISE OF OPTION
[DATE]
Attention: President
Dear Sir:
Re: Stock Option
Please be advised that I, being the holder
of an option to purchase Class 8 Special Shares of ObjecTime Limited
(the "Corporation") at the exercise price of CDN$ per share,
hereby exercise my option to purchase of such Class 8
Special Shares (the "Purchased Shares") of the Corporation. I enclose
my cheque payable to the Corporation for $
representing the full purchase price for the Purchased Shares. Please
arrange for delivery to me of a certificate representing the Purchased
Shares registered as follows:
---------------------------------------------
Name in which certificate is to be registered
---------------------------------------------
FULL ADDRESS
---------------------------------------------
The undersigned hereby undertakes to comply, to the satisfaction of
the Corporation and its counsel, with all applicable requirements of
any stock exchange or exchanges upon which any securities of the
Corporation are from time to time listed and any applicable regulatory
authority or authorities.
Yours very truly,
---------------------------------------------
Signature
---------------------------------------------
Name (Please print)
OBJECTIME LIMITED
THIS CLASS "8" EMPLOYEE SHAREHOLDING AGREEMENT made the * day of *,
19*.
BETWEEN:
*
of the City of *,
in the Province of Ontario,
(hereinafter referred to as the "Employee")
AND:
ObjecTime Limited, a corporation
incorporated under the laws of
Canada
(hereinafter referred to as the "Corporation")
WHEREAS Employee has exercised an option granted to the Employee by the
Corporation and has thereby acquired certain Class 8 Shares of the
Corporation;
AND WHEREAS the option agreement entered into between the Employee and
the Corporation provides that the Employee shall, as a condition to the
issuance of the shares to the Employee by the Corporation pursuant to the
option agreement, enter into this agreement;
IN CONSIDERATION of the mutual covenants herein contained and the issue
to the Employee of the Employee's Shares, the parties hereto covenant and
agree as follows:
ARTICLE 1.00 -- DEFINITIONS AND INTERPRETATION
1.01 Definitions - As used in this Agreement, the following words and
phrases mean:
(a) "Agreement" means this Agreement and any written amendments
thereto executed by both the Corporation and the Employee;
(b) "Book Value of the Corporation" means the amount paid up in
respect of all Special Shares of the Corporation at the
relevant date together with the aggregate of the retained
earnings and of all other surplus accounts of the
Corporation, determined in accordance with generally accepted
accounting principles, after deducting therefrom all declared
but unpaid dividends, on any shares ranking in priority to
the Employee's Shares;
(c) "Book Value of the Employee's Shares" means the amount
obtained by multiplying the Book Value of the Corporation at
the relevant date by a fraction, the numerator of which is
the total number of the Employee's Shares and the denominator
of which is the total number of issued voting Special Shares
of all classes at the same date;
(d) "Call Notice" means the notice referred to in Section 2.01
hereof;
(e) "Date of Closing" means thirty (30) days after the delivery
of the Call Notice;
(f) "Employee's Shares" means the Class "8" Special Shares
allocated and issued to the Employee under the terms of this
Agreement and all such other shares of the Corporation into
which such Class "8" Special Shares may at any time be
converted, subdivided, consolidated or otherwise transformed;
(g) "Fair Market Value" means the amount determined under
Schedule "A" attached hereto;
(h) "Fair Market Value of the Employee's Shares" means the amount
determined under Schedule "A" attached hereto;
(i) "Founding Shareholders' Agreement" means the agreement among
Ian Engelberg, Garth Gullekson, James McGee, Branislav Selic
and ObjecTime Limited dated the 1st day of January, 1995 to
regulate the rights and obligations of the parties thereto;
(j) "Paid Up Amount of the Employee's Shares" means the actual
amount of money paid to the Corporation by the Employee for
the purchase of the Employee's Shares at the time of their
issue.
(k) "Place of Closing" means the offices of the solicitors for
the Corporation or such other place as may be agreed to by
the Corporation and the Employee;
(l) "Prime Bank Rate" means the commercial lending rate of
interest, expressed as an annual rate, which the
Corporation's principal bankers quote in Ottawa as its prime
lending rate which it charges to its commercial customers for
loans in Canadian funds;
(m) "Purchase Price" means in respect of the purchase and sale of
the Employee's Shares under this Agreement:
(i) the Paid Up Amount of the Employee's Shares, in respect
of all the Employee's Shares acquired by the Employee
during the two year period immediately prior to the
delivery date of the Call Notice;
(ii) the Book Value of the Employee's Shares, in respect of
all the Employee's Shares acquired by the Employee at
any time more than two (2) years and less than four (4)
years immediately prior to the delivery date of the
Call Notice;
(iii) the Fair Market Value of the Employee's Shares, in
respect of all the Employee's Shares acquired by the
Employee at any time more than four (4) years
immediately prior to the delivery date of the Call
Notice.
Provided that, if the amount determined under paragraphs (ii)
and (iii) above is less than the Paid Up Amount, the Purchase
Price shall be the Paid Up Amount.
For purposes of this Agreement and, in particular of the
calculation of the Purchase Price, the Employee's Shares
shall be deemed to have been acquired by the Employee on *.
(n) "Special Shares" means, collectively, all those issued Class
"1" Special Shares, Class "2" Special Shares, Class "3"
Special Shares, Class "4" Special Shares, Class "5" Special
Shares, Class "6" Special Shares, Class "7" Special Shares,
Class "8" Special Shares and any other issued Special Shares
created at any time by the Corporation with an attribute of
sharing pari passu with all other Special Shares;
(o) "Time of Closing" means 2:00 p.m. or such other time on the
Date of Closing as may be agreed to by the Employee and the
Corporation.
[NOTE: Articles 2, 3 and 4 shall be deleted from this agreement in the
event that Shares are acquired as a result of the exercise of an option
under paragraphs 11 or 12.1 of the ObjecTime Limited 1998 Canadian Stock
Option Plan or paragraphs 11 or 12.1 of the ObjecTime Limited 1998 US
Stock Option Plan.]
ARTICLE 2.00 -- "CALL" PRIVILEGE
2.01 Call Notice - At any time after the Employee either resigns from
his or her employment with the Corporation or is terminated for cause (as
defined in the ObjecTime Limited Stock Option Plans) by the Corporation,
the Corporation shall have the right to send a notice in writing to the
Employee requiring the Employee to sell to the Corporation all, but not
less than all, the Employee's Shares and upon receipt of such notice the
Employee shall be required to sell and the Corporation required to
purchase all the said Employee's Shares upon and subject to the terms and
conditions hereinafter set out.
2.02 Purchase Price - The Purchase Price shall be determined as of the
last day of the month in which the Call Notice shall have been given to
the Employee.
ARTICLE 3.00 -- GENERAL SALE PROVISIONS
3.01 Transfer Restriction - Except as provided in Section 2.01 hereof,
the Employee's Shares in the capital of the Corporation may not be
transferred except with the approval, in writing, of at least 75% of the
Special Shares held directly or indirectly by such of Ian Engelberg,
Garth Gullekson, James McGee and Branislav Selic as shall then be
employees of the Corporation.
3.02 Sale Provisions - The provisions of this Article shall apply to
any purchase of the Employee's Shares pursuant to the provisions of
Article 2.00 hereof.
3.03 Method of Payment - The Purchase Price shall be paid in five
equal annual instalments, without interest, commencing on the Date of
Closing and thereafter each instalment to be paid on each of the next
four anniversary dates of the Date of Closing, subject to the following
terms and conditions:
(a) if the purchase price is an amount less than TWENTY-FIVE
THOUSAND ($25,000.00) DOLLARS, it shall be paid in full,
subject to subparagraphs (b) and (c) immediately below, on
the Date of Closing;
(b) all amounts paid in any fiscal year on all purchases of
Special Shares of the Corporation under the Founding
Shareholders' Agreement, this Agreement and under all other
shareholding agreements with other employees or former
employees of the Corporation shall not in any event exceed
20% of the amount of Retained Earnings determined in the
accounts of the Corporation for the immediately preceding
fiscal year of the Corporation, which Retained Earnings shall
be calculated in accordance with generally accepted
accounting principles applied on a basis consistent with the
previous year;
(c) if the Retained Earnings for the immediately preceding fiscal
year shall be inadequate to pay all the amounts payable in
any year for the purchase of Special Shares of the
Corporation, the amount to be paid to the Employee in this
Agreement shall abate on a pro rata basis with all other
amounts required to be paid on the purchases of such Special
Shares of the Corporation and all amounts, in arrears,
required to be paid to the Employee under the terms of this
Agreement shall be carried over to and be paid in the next
year and such unpaid arrears shall bear interest at the Prime
Bank Rate until fully paid, provided that, again in each
year, the limit of 20% shall apply, and so on until all
amounts shall be paid to the Employee hereunder and, in
respect thereof, the oldest amounts owed to the Employee
under this Agreement shall be deemed to be paid first; and
(d) notwithstanding any other terms of this Agreement, any
balance due to the Employee under this Agreement may be
prepaid in whole or in part at any time or times without
notice or bonus.
3.04 Documents on Closing - At the Time of Closing, the Employee
shall:
(a) assign and transfer to the Corporation the Employee's Shares
and shall deliver the required share certificate(s) duly
endorsed for transfer into the Corporation's name;
(b) do all other things required in order to deliver good and
marketable title to the Employee's Shares to the Corporation
free and clear of any claims, liens and encumbrances
whatsoever, including, without limitation, the delivery of
any governmental releases and declarations of transmission.
Provided that, if at the Time of Closing the Employee's
Shares are not free and clear of all claims, liens and
encumbrances, the Corporation may, without prejudice to any
other rights which it may have, purchase the Employee's
Shares subject to such claims, liens and encumbrances. In
that event, the Corporation shall, at the Time of Closing,
assume all obligations and liabilities with respect to such
claims, liens and encumbrances and the Purchase Price payable
by the Corporation for the Employee's Shares shall be
satisfied, in whole or in part, as the case may be, by such
assumption. The amount so assumed shall reduce the Purchase
Price payable at the Time of Closing;
(c) deliver to the Corporation a release by the Employee of all
the Employee's claims against the Corporation with respect to
any matter or thing up to and including the Time of Closing
in respect of the Employee's position as a shareholder of the
Corporation, except for any claims which might arise out of
the transaction of purchase and sale herein contemplated;
(d) either provide the Corporation with evidence reasonably
satisfactory to the Corporation that the Employee is not then
a "non-resident" of Canada within the meaning of the Income
Tax Act (Canada) or provide the Corporation with a
certificate pursuant to Subsection 116(2) of the Income Tax
Act (Canada) with a certificate limit in an amount not less
than the Purchase Price for the Employee's Shares; provided
that if such evidence or certificate is not forthcoming, the
Corporation shall be entitled to make the payment of tax
required under Article 116 of the Income Tax Act (Canada) and
to deduct such payment from the Purchase Price for the
Employee's Shares.
3.05 Release of Employee - At the Time of Closing, the Corporation
shall deliver to the Employee a release by the Corporation of all its
claims against the Employee with respect to any matter or thing arising
as a result of the Employee being a shareholder of the Corporation,
except for any claims which might arise out of the wrongdoing of the
Employee or out of the transaction of purchase and sale herein
contemplated.
3.06 Power of Attorney - If, at the Time of Closing, the Employee
fails to complete the subject transaction of purchase and sale, the
Corporation shall have the right, if not in default under this Agreement,
without prejudice to any other rights which it may have, upon payment of
the Purchase Price payable to the Employee at the Time of Closing to the
credit of the Employee in the main branch of the Corporation's bankers in
the City of Ottawa, to execute and deliver, on behalf of and in the name
of the Employee, such deeds, transfers, share certificates, resignations
or other documents that may be necessary to complete the subject
transaction and the Employee hereby irrevocably appoints the Corporation
as the Employee's attorney with full power and authority available under
the Powers of Attorney Act, R.S.O. 1980, c. 386 to transfer the
Employee's Shares, and, in accordance with the said Act, the Employee
declares that this power of attorney may be exercised during any
subsequent legal incapacity on the Employee's part.
ARTICLE 4.00 -- EMPLOYMENT CONSIDERATION
4.01 Full Consideration - The Employee acknowledges that the Purchase
Price of the Employee's Shares as set out in this Agreement will be and
is a full and fair consideration for such Shares and, in the event that
the Corporation delivers to the Employee a Call Notice under Article 2
hereof, the Employee hereby agrees to accept the Purchase Price in full
and complete satisfaction of any and all rights which the Employee has in
respect of such Employee's Shares and shall release and forever discharge
the Corporation in respect of such Employee's Shares without further
demand, claim or complaint in respect thereof.
ARTICLE 5.00 MANDATORY SALE TO THIRD PARTY
5.01 If an independent third party shall make a bona fide offer
(an "Offer") to purchase all of the shares of the Corporation held by
all of the shareholders of the Corporation which the holders of shares
entitled to not less than 75% of the votes attaching to shares of the
Corporation wish to accept (the "Majority") (such offer to be in cash
or marketable securities readily convertible into cash) but which other
shareholders (the "Minority") do not wish to accept, and such Offer is
conditioned upon its acceptance by all the shareholders, the Majority
may, by notice in writing given to the Minority at any time 30 days or
more prior to the expiry of the Offer, require the Minority to elect to
sell their shares pursuant to the Offer or to purchase from the
Majority at the same price specified in the Offer all of the shares
held by the Majority, such election to be notified to the Majority not
less than 10 days prior to the expiry of the Offer. If the Minority
fail to make the required election within the time so limited they
shall be deemed to have elected to sell their shares pursuant to the
Offer. If the Minority elect to purchase the shares held by the
Majority, such purchase shall be completed and paid for not later than
30 days following such election.
ARTICLE 6.00 -- TERMINATION
6.01 Prior Agreements - All prior agreements between the Employee and
the Corporation regarding the Employee Shares, whether written or oral,
are hereby terminated.
6.02 Termination - Notwithstanding any other provision of this
Agreement to the contrary, this Agreement shall terminate and be of no
effect in the event the Corporation shall cease to be a private company
and, for the purpose thereof, "cease to be a private company" means the
issue under the Business Corporations Act (Ontario) of Articles of
Amendment to delete such of the following clauses as shall be in the
Articles of Incorporation, namely:
(a) any limitation on the number of shareholders;
(b) any restriction on the transfer of shares; and
(c) any prohibition against advertising or issuing shares to the
public.
ARTICLE 7.00 -- GENERAL CONTRACT PROVISIONS
7.01 Share Notation - All certificates for Class "8" Special Shares of
the Corporation representing the Employee's Shares shall have the
following legend endorsed thereon forthwith after the execution of this
Agreement:
"The shares represented by this certificate are
subject to an agreement dated the * day of *,
19*, made between the holder of this certificate
and ObjecTime Limited."
7.02 Share Deposit - The original share certificate for all Employee's
Shares shall be held in escrow safekeeping by the Secretary of the
Corporation and the Employee shall receive a deposit certificate signed
by the Secretary certifying the number of Class "7" Shares so held in
escrow safekeeping by the Secretary on behalf of the Employee.
7.03 Notices - All notices, requests, demands or other communications
by the terms hereof required or permitted to be given by one party to
another shall be given in writing by personal delivery or by registered
mail, postage prepaid, addressed to such other party or delivered to such
other party as follow:
or at such other address as may be given by any of them to the others in
writing from time to time and such notices, requests, demands or other
communications shall be deemed to have been received when delivered, or,
if mailed, forty-eight (48) hours after 12:01 a.m. on the day following
the day of the mailing thereof; provided that if any such notice,
request, demand or other communication shall have been mailed and if
regular mail service shall be interrupted by strikes or other
irregularities, such notices, requests, demands or other communications
shall be deemed to have been received forty-eight (48) hours after 12:01
a.m. on the day following the resumption of normal mail service.
7.04 Time - Time shall be of the essence of this Agreement and of
every part hereof and no extension or variation of this Agreement shall
operate as a waiver of this provision.
7.05 Entire Agreement - This Agreement constitutes the entire
agreement between the parties hereto with respect to the Employee's
Shares and its execution has not been induced by, nor do any of the
parties hereto rely upon or regard as material, any representations or
writings whatsoever not incorporated herein and made a part hereof.
7.06 Binding Nature - This Agreement shall enure to the benefit of and
be binding upon the parties hereto and their respective heirs, executors,
administrators, successors, assigns and legal representatives.
IN WITNESS WHEREOF the parties have duly executed this Agreement this *
day of *, 19*.
SIGNED, SEALED AND DELIVERED
in the presence of:
-------------------------- -----------------------------
ObjecTime Limited
By:
-----------------------------
Name: James McGee
Office: President c/s
By:
-----------------------------
Name: Jim Ablett
Office: Vice President, Finance
FAIR MARKET VALUE OF THE EMPLOYEE'S SHARES
The Fair Market Value of the Employee's Shares shall be determined
by the Board of Directors of the Corporation, having regard to the
following rules and procedures:
(a) that the fair market value of each of the Employee's Shares
shall be identical to the fair market value of each Special
Share of the Corporation without regard to separate classes
of Special Shares;
(b) that the Board of Directors shall carefully review and
examine each of the following sources of information in
determining fair market value, namely:
(i) the financial operating results in the current year
since the last fiscal year end;
(ii) the financial statements of the Corporation in the
three immediately preceding fiscal years, placing major
weight, in its determination, on the performance
results in the most recent fiscal year end;
(iii) the recent determinations, if any, of the fair market
value in Schedule "A" of the Founding Shareholders'
Agreement;
(iv) the recent valuations of the Corporation, if any, made
by a business valuator under the terms of the Founding
Shareholders' Agreement; and
(v) all other relevant considerations in determining the
fair value of the Corporation's Special Shares applied
in accordance with generally accepted valuation
principles; and
(c) that the fair market value of each of the Employee's Shares
as determined by the Board of Directors shall be confirmed as
to its reasonableness by the firm of chartered accountants
retained by the Corporation to review or to audit the
accounts, as the case may be, of the Corporation; and
(d) that the Purchase Price of the Employee's Shares being
purchased and sold under Article 2.00 shall be determined by
dividing the Fair Market Value of all the issued Special
Shares determined in the manner hereinbefore set out by all
the Special Shares then issued and outstanding, of all
classes and multiplying the resulting amount by the number of
the Employee's Shares being purchased and sold as aforesaid
provided that, for the purpose of determining the Fair Market
Value the calculation thereof and the determination of the
number of Special Shares and of the Employee's Shares shall
be made at the end of the month in which the Call Notice
shall have been made.
OBJECTIME LIMITED
1998 CANADIAN STOCK OPTION PLAN
1. ESTABLISHMENT AND PURPOSE OF THE PLAN
A Stock Option Plan (hereinafter called the "Plan") for ObjecTime
Limited (the "Corporation") is hereby established to provide the
incentive inherent in share ownership to the directors, officers and
other employees of the Corporation and its subsidiaries (as that term
is defined in of the Business Corporations Act (Ontario), hereinafter
referred to as a "Subsidiary" or "Subsidiaries") of the Corporation by
providing them with opportunities to purchase Class 8 Special Shares
(the "Shares") of the Corporation pursuant to options granted hereunder
(hereinafter referred to individually as an "Option" and collectively
as "Options").
2. TERM OF PLAN
The Plan shall commence effective as of April 1, 1998, and shall,
subject to (a) the earlier termination of the Plan by the Corporation
pursuant to the terms hereof, and (b) the approval of the Plan by the
shareholders as required under paragraph 19 hereof, continue and be in
effect until March 31, 2008 (except as to Options outstanding on that
date). If the approval of shareholders is not obtained prior to April
1, 1999 any grants of Options under the Plan made prior to that date
will be rescinded.
3. ADMINISTRATION OF THE PLAN
The board of directors (the "Board of Directors") of the Corporation,
or any committee thereof (the "Committee", provided that all
references in this Plan to the Committee shall mean the Board of
Directors if no Committee has been appointed), specifically designated
by the Board of Directors to be responsible therefor, shall administer
the Plan and shall have the authority to and may from time to time by
resolution determine (a) the number of Shares in respect of which
Options shall be granted under the Plan, (b) the employees of the
Corporation and Subsidiaries to whom Options may be granted; (c) the
time or times at which Options may be granted; (d) the exercise price
of Shares subject to each Option; (e) subject to paragraph 8 hereof,
the time or times when each Option shall become exercisable and the
duration of the exercise period; (f) whether restrictions are to be
imposed on Shares subject to Options, and the nature of such
restrictions, if any; (g) whether an Option Agreement may be amended
or modified, including an amendment to extend the post-termination
exercisability period to a period which is longer than is otherwise
provided for in the Plan or to provide that an Option shall not
terminate under paragraph 12.1 or 12.2 of the Plan; and (i) all other
matters necessary or advisable for the administration of the Plan. If
and once appointed, the Committee shall select one of its members as
its Chairman and shall hold its meetings at such time and place as it
shall deem advisable. A majority of the members of the Committee shall
constitute a quorum and all actions of the Committee shall be taken by
a majority of the members present at any meeting. Any action of the
Committee may be taken by an instrument or instruments in writing
signed by all the members of the Committee, and any action so taken
shall be as effective as if it had been passed by a majority of the
votes cast by the members of the Committee present at a meeting of such
members duly called and held.
Nothing contained in the Plan or any Option Agreement shall be
construed in any way so as to prevent the Corporation or any Subsidiary
from taking any corporate action which is deemed by the Corporation or
the Subsidiary to be appropriate or in its best interest, even if such
action would have an adverse effect on the Plan. The interpretation by
the Committee of any provision or provisions of the Plan or of any
Option granted hereunder shall be final, binding and conclusive;
provided, however, that an employee, officer or director shall have the
right not to participate in the Plan and any decision not to
participate herein shall not affect such employee's employment by, or
such director's engagement with, the Corporation. No member of the
Board of Directors or the Committee shall be liable for any action or
determination made in good faith with respect to the Plan or any Option
granted under the Plan, provided that a director shall not take any
action with respect to any Option granted to such director.
4. ELIGIBLE PARTICIPANTS
Options may be granted to any officer, director (whether or not the
director is a full time employee of the Corporation or a Subsidiary) or
employee of the Corporation or a Subsidiary or any consultant to the
Corporation or a Subsidiary.
5. NUMBER OF SHARES
The maximum number (the "Maximum Number") of Shares issuable pursuant
to the Plan is 8,750,000, subject to any amendment to such maximum
number pursuant to paragraph 19 hereof. In the event that any Option
granted hereunder shall expire or terminate for any reason whatsoever
without having been exercised in full, or shall cease to be exercisable
for any reason whatsoever in whole or in part, the unpurchased Shares
subject thereto shall again be available for the granting of Options in
respect thereto under the Plan. The number of Shares subject to option
in favour of any one person, together with any other Shares reserved
for issuance under any other plans to such person, shall not exceed 5%
of the total number of issued and outstanding Shares at the date of
grant of his Option.
6. AMENDMENT OR TERMINATION OF THE PLAN
The Board of Directors or the Committee shall have the unfettered right
to interpret the provisions of this Plan and to make such regulations
and to formulate such administrative provisions for carrying this Plan
into effect and to make such amendments to the Plan, the regulations or
administrative provisions as, from time to time, the Board of
Directors or the Committee deems appropriate in the best interests of
the Corporation. The Board of Directors may amend this Plan or adopt
alternative versions of this Plan as the Board of Directors deems
necessary or desirable to comply with the laws of, or to accommodate
the tax policies or customs of, foreign jurisdictions whose citizens or
residents may be granted Options hereunder. The Board of Directors
shall also have the unfettered right from time to time and at any time
to rescind or terminate the Plan as it shall deem advisable; provided,
however, that no such rescission or termination shall impair or change
the rights and Options theretofore granted under the Plan without the
prior written consent of the optionee or optionees affected thereby.
7. EXERCISE PRICE
7.1 The exercise price of the Shares purchased pursuant to the
Options granted hereunder shall be not be less than the fair market
value, as defined in paragraph 7.2 hereof, as of the date on which such
Options are granted.
7.2 "Fair Market Value" for the purposes of determining the exercise
price of an Option granted hereunder shall be determined as follows:
(a) If at the time that the Option is granted under the Plan
the Shares are listed or posted for trading on the Toronto Stock
Exchange (the "TSE"), Fair Market Value shall mean the closing price
of the Shares on the TSE (or, if the Shares are not listed on the
TSE, fair market value shall mean the closing price on such stock
exchange or market in Canada on which the Shares are listed or
posted for trading as may be selected by the Committee) on the
trading day immediately preceding the date on which the Option is
granted, and if no Shares have been traded on such day the exercise
price shall be established on the same basis on the last previous
day for which a trade was reported by such stock exchange or market.
In the event that the Shares are not listed or posted for trading on
a stock exchange in Canada at the time of the granting of an Option
hereunder, the Fair Market Value shall mean the last trading price
of the Shares on the National Association of Securities Dealers
Quotations Systems ("NASDAQ"), "), or such other market or stock
exchange in the United States on which the Shares are listed or
posted for trading as may be selected by the Committee, on the
trading day immediately preceding the date on which the Option is
granted, and if no Shares have been traded on such day the exercise
price shall be established on the same basis on the last previous
day for which a trade was reported by such market or stock exchange.
(b) If the Shares are not publicly traded at the time that the
Option is granted under the Plan, Fair Market Value shall mean the
value determined in good faith by the Board of Directors, in its
sole discretion.
8. TERM OF OPTIONS
8.1 Term. Subject to the earlier termination of the Option as
provided herein, each Option granted hereunder shall be for a term
specified by the Committee and set forth in the Option Agreement,
provided that the term shall not exceed ten years from the date of
grant (the "Expiry Date").
8.2 Exercise Dates. Unless the Committee determines otherwise, each
Option shall be exercisable in whole or in part, at the following rate:
(a) 50% of the total number of Shares subject to the Option shall be
exercisable on the first anniversary of the date of grant of the
Option, and (b) thereafter at a rate of 1/24th per month of an amount
equal to 50% of the total number of Shares subject to the Option (each
such date is hereinafter referred to as an "Exercise Date"). The Shares
in respect of which the Option shall have become exercisable may be
purchased, in whole or in part, at any time, or from time to time,
until the expiration or termination of the Option. The Committee shall
have the right to accelerate the Exercise Date or Exercise Dates for
some or all of the Shares subject to an Option.
9. OPTION AGREEMENT
Each optionee shall execute an option agreement (an "Option Agreement")
which has been duly executed and delivered by the Corporation to the
optionee prior to the grant of any Option to an optionee becoming
effective. The terms and conditions of the Option Agreement need not be
the same in each case and may be changed from time to time by the
Committee. The Board of Directors may from time to time confer
authority and responsibility on one or more of its members and/or one
or more officers of the Corporation to execute and deliver Option
Agreements. The proper officers of the Corporation are authorized and
directed to take any and all action necessary or advisable from time to
time to carry out the terms of the Option Agreements.
10. ACCELERATION OF OPTION
10.1 Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Corporation, the Committee shall
notify each optionee as soon as practicable prior to the effective date
of such proposed transaction. The Committee in its discretion may
provide for an optionee to have the right to exercise his or her Option
until ten days prior to such transaction as to all of the optioned
Shares subject to the Option, including Shares in respect of which the
Option would not otherwise be exercisable. In addition, the Committee
may provide that any repurchase right of the Corporation applicable to
any Shares purchased upon the exercise of an Option shall lapse as to
all such Shares, provided the proposed dissolution or liquidation takes
place at the time and in the manner contemplated. To the extent it has
not been previously exercised, an Option will terminate immediately
prior to the consummation of such proposed action.
10.2 Merger, Amalgamation, Share Sale or Asset Sale. In the event of a
merger, amalgamation, or consolidation of the Corporation with or into
another corporation or entity, or an offer to purchase Shares having
attached thereto greater than 50% of the votes attaching to all of the
outstanding shares of the Corporation or the sale of all or
substantially all of the assets of the Corporation, each outstanding
Option shall be assumed or an equivalent option or right shall be
substituted therefor by the successor corporation or entity or a parent
or Subsidiary of the successor corporation or entity. In the event
that the successor corporation or entity or the parent or Subsidiary of
the successor corporation or entity refuses to assume the Option or to
substitute for the Option an equivalent option or right, the optionee
shall have the right to exercise the Option as to all of the optioned
Shares subject to the Option, including Shares as to which the Option
would not otherwise be exercisable. If an Option becomes fully
exercisable in lieu of assumption or substitution in accordance with
the provisions of this paragraph 10.2, the Committee shall notify the
optionee in writing or electronically that the Option shall be fully
vested and exercisable for a period of 15 days from the date of such
notice, and the Option shall terminate upon the expiration of such
period.
11. DEATH OR DISABILITY OF OPTIONEE
Notwithstanding anything contained herein to the contrary, in the event
that prior to the termination or expiration of an Option an optionee
dies or becomes permanently and totally disabled while engaged as an
employee of the Corporation, any Option granted hereunder will not
terminate and will continue to vest until the Expiry Date. Any vested
Options may be exercised by the optionee or the legal personal
representative(s) or heir(s) of the optionee, as the case may be, at
any time and from time to time prior to the Expiry Date, after which
date the Option or Options shall forthwith expire and terminate and be
of no further force or effect whatsoever, and the Shares in respect of
which the Option is not exercised shall revert to the Plan.
For greater certainty, any optionee who is deemed to be an employee of
the Corporation pursuant to any medical or disability plan of the
Corporation shall be deemed to be an employee for the purposes of this
Plan.
12. TERMINATION OF EMPLOYMENT OF OPTIONEE
12.1 Without Cause. In the event that an optionee's employment with
the Corporation or a Subsidiary is terminated without Cause (as defined
in paragraph 12.4 hereof) before the exercise in full of the Option
granted to such optionee, such optionee shall be entitled to exercise
the Option to the extent of the Shares in respect of which such Option
is exercisable on the date on which notice of termination is delivered
to the optionee by the Corporation or the Subsidiary at any time
beginning on such date and ending on the earlier of (a) 90 days
following an initial public offering of shares by the Corporation (or
90 days following the expiry of any contractual or other restriction on
the resale of the Shares relating to such initial public offering of
shares by the Corporation, whichever is later), (b) two years following
the date on which notice of termination is delivered to the optionee by
the Corporation or a Subsidiary, and (c) the Expiry Date of the Option,
and thereafter the Option granted to such optionee shall expire and all
rights to purchase Shares pursuant to the Option granted to such
optionee shall cease and expire and be of no further force or effect.
Any Shares in respect of which the Option is not exercised during the
period referred to above shall revert to the Plan. If on the date on
which notice of termination is delivered to the optionee by the
Corporation or a Subsidiary the Option is not exercisable in respect of
all of the Shares, the number of Shares in respect of which the Option
is not exercisable on such date shall revert to the Plan effective as
of such date.
12.2 Resignation by Optionee. In the event that an optionee
resigns or terminates his or her employment with the Corporation or a
Subsidiary before the exercise in full of the Option granted to such
optionee, such optionee shall have 90 days from the date on which
notice of termination is delivered to the Corporation or a Subsidiary
by the optionee (or until the Expiry Date of the Option, whichever is
less), to exercise the Option to the extent of the Shares in respect of
which such Option is exercisable on the date on which notice of
termination is delivered to the Corporation or a Subsidiary by the
optionee, and thereafter the Option granted to such optionee shall
expire and all rights to purchase Shares pursuant to the Option granted
to such optionee shall cease and expire and be of no further force or
effect. Any Shares in respect of which the Option is not exercised
within the 90 day period referred to above shall revert to the Plan.
If on the date on which notice of termination is delivered by the
optionee to the Corporation or a Subsidiary the Option is not
exercisable in respect of all of the Shares, the number of Shares in
respect of which the Option is not exercisable on such date shall
revert to the Plan effective as of such date.
12.3 Committee or Board Discretion. Notwithstanding paragraphs
12.1and 12.2 of this Plan, the Committee may, in its sole and
unfettered discretion, extend the post-termination exercise period
provided for in paragraphs 12.1 and 12.2, provided that such period
does not extend beyond the Expiry Date. Further, an Option Agreement
may provide, or the Committee may, in its sole and unfettered
discretion, amend or modify an Option Agreement (either before or after
the delivery of a notice of termination of employment to or by an
optionee) to provide: (a) that an Option does not terminate upon the
delivery of a notice of termination to an optionee by the Corporation
under paragraph 12.1 hereof or to the Corporation or a Subsidiary by an
optionee under paragraph 12.2 hereof, and (b) that the Exercise Date
for some or all of the Shares subject to the Option is accelerated to
an earlier date and that the optionee shall have a specified period of
time in which to exercise the Option to the extent of the Shares in
respect of which the Option is exercisable pursuant to the Option
Agreement or the Option Agreement as amended in accordance with this
paragraph.
12.4 For Cause. If the employment of an optionee is terminated by the
Corporation for Cause, such optionee's Options shall terminate on the
date (the "Termination Date") on which written notice of such
termination is given to the optionee by the Corporation and all rights
to purchase Shares pursuant to the Option granted to such optionee
shall cease and expire and be of no further force or effect. All
Shares in respect of which the Option was granted shall revert to the
Plan effective as of the Termination Date. "Cause" shall include, but
shall not be limited to, conduct involving one or more of the
following: (i) the substantial and continuing failure of an optionee,
after notice thereof, to render services to the Corporation or any
Subsidiary in accordance with the terms or requirements of his or her
employment; (ii) disloyalty, gross negligence, wilful misconduct,
dishonesty or breach of fiduciary duty to the Corporation or any
Subsidiary; (iii) the commission of an act of embezzlement or fraud;
(iv) the unauthorized disclosure of any trade secret or confidential
information of the Corporation or any Subsidiary; (v) the commission of
an act which constitutes unfair competition with the Corporation or any
Subsidiary or which induces any customer or supplier to breach a
contract with the Corporation or any Subsidiary or (vi) any other
conduct recognized by the laws of the Province of Ontario as
constituting just cause for dismissal.
12.5 General. Nothing in the Plan or in any Option Agreement
entered into between the Corporation and an employee shall be deemed to
give any optionee the right to continued employment by the Corporation
or any Subsidiary for any period of time and nothing contained herein
shall affect the right of the Corporation or any Subsidiary to
terminate, with or without Cause, an optionee's employment with the
Corporation or a Subsidiary at any time. The vesting of shares
pursuant to an Option Agreement is only earned by the optionee by
continuing as an employee of the Corporation or a Subsidiary or by
continuing to be a director or officer of one of the foregoing and not
through the act of being hired, being appointed a director, being
granted an Option or purchasing Shares pursuant to the exercise of an
Option. Options shall not be affected by any change of employment so
long as the optionee continues to be employed by the Corporation or any
Subsidiary or continues to be a director or officer of one of the
foregoing. A leave of absence for which the prior approval of the
Corporation has been obtained shall not be considered an interruption
or termination of employment under the Plan. Nothing in the Plan shall
be construed so as to give any consultant, director, officer or
employee any right to be granted an Option.
13. EXERCISE OF OPTION
13.1 Notice of Exercise of Option. Subject to the provisions of the
Plan, the Options granted hereunder may be exercised from time to time
by the delivery to the Corporation at its head office, or such transfer
agent as the Corporation may from time to time designate, of a written
notice (the "Notice of Exercise of Option") in the form attached to the
Option Agreement, specifying the number of Shares with respect to which
the Option is being exercised and accompanied by payment in full of the
purchase price of the Shares then being purchased (a) in cash or
certified cheque in favour of the Corporation, or (b) at the discretion
of the Committee, by the delivery of Shares having Fair Market Value
equal as of the date of the exercise of the Option to the cash exercise
price of the Option, or (c) by the delivery of such other lawful
consideration as is approved by the Board of Directors. The form of
consideration (for consideration other than cash) shall be subject to
the approval of the Board of Directors at the time of the exercise of
the Option. The Notice of Exercise of Option shall contain the
optionee's undertaking to comply, to the satisfaction of the
Corporation and its counsel, with all applicable requirements of any
stock exchange or exchanges upon which any securities of the
Corporation are from time to time listed and any applicable regulatory
authority or authorities.
13.2 Employee Shareholding Agreement. Unless the Corporation is a
Reporting Issuer (as defined in the Securities Act (Ontario)) or has
become an offering corporation (as defined in the Business Corporations
Act (Ontario)) at the time of exercise of an Option, the issuance of
Shares upon the exercise of an Option shall be conditional upon an
optionee executing an employee shareholding agreement in the form
attached hereto as Schedule "A", as such agreement may be amended from
time to time by the Board of Directors; provided that, in the event of
the exercise of an Option under paragraphs 11 or 12.1 hereof, the
employee shareholding agreement attached hereto as Schedule "A" shall
not include the call right or related provisions set out in Articles 2,
3 or 4 thereof.
14. NON-TRANSFERABILITY OF OPTIONS
Except as specifically provided herein, the rights of any optionee
under the Plan are personal to the optionee and are not transferable or
assignable other than by will or the laws of descent and distribution,
and except as provided herein are only exercisable by the optionee. The
obligations of each optionee pursuant to the Plan and any Option shall
be binding on his or her heirs, executors and administrators.
15. COMPLIANCE WITH SECURITIES LAWS
The grant of Options and the issuance of Shares upon the exercise of
Options shall be subject to compliance with all applicable requirements
of federal, provincial or foreign law with respect to such securities.
Options may not be exercised if the issuance of Shares upon the
exercise of the Option would constitute a violation of any applicable
federal, provincial or foreign securities laws or other law or
regulations or the requirements of any stock exchange or market system
upon which the Shares may then be listed. The inability of the
Corporation to obtain from any regulatory body having jurisdiction the
authority, if any, deemed by the Corporation's legal counsel to be
necessary to the lawful issuance and sale of any Shares hereunder shall
relieve the Corporation of any liability in respect of the failure to
issue or sell such Shares as to which such requisite authority shall
not have been obtained. As a condition to the exercise of any Option,
the Corporation may require the optionee to satisfy any qualifications
that may be necessary or appropriate, to evidence compliance with any
applicable law or regulation and to make any representation or warranty
with respect thereto as may be requested by the Corporation.
16. CHANGES IN THE CAPITAL OF THE CORPORATION
16.1 Subdivision of Shares. In the event of any subdivision or
subdivisions of the Shares into a greater number of Shares at any time
while an Option is outstanding, including the issue of Shares to the
holders of its outstanding Shares by way of a stock dividend or
dividends, the Corporation will thereafter deliver at the time of
exercise of the Option, in lieu of the number of Shares in respect of
which the Option is then being exercised, such greater number of Shares
as the optionee would have been entitled as a result of such
subdivision or subdivisions of the Shares or such stock dividend had
the Option been exercised prior to the date of such subdivision or
stock dividend, without the optionee making any additional payment or
giving any other consideration therefor.
16.2 Consolidation of Shares. In the event of any consolidation or
consolidations of the Shares into a lesser number of Shares at any time
while an Option is outstanding, the Corporation will thereafter deliver
and the optionee shall accept, at the time of the exercise of the
Option, in lieu of the number of Shares in respect of which the Option
is then being exercised, such lesser number of Shares as the optionee
would have been entitled as a result of such consolidation or
consolidations had the Option been exercised prior to such
consolidation or consolidations.
16.3 Reclassification or Conversion of Shares. In the event of any
change, reclassification or conversion of the Shares into another class
of shares of the Corporation at any time while an Option is
outstanding, the Corporation shall thereafter deliver and the optionee
shall accept, at the time of the exercise of an Option, in lieu of the
number of Shares in respect of which the Option is being exercised, the
number of shares of the Corporation of the appropriate class or classes
as the optionee would have been entitled as a result of such change,
reclassification or conversion had the Option been exercised prior to
such change, reclassification or conversion .
16.4 No Fractional Shares. Notwithstanding the foregoing, no
fractional shares shall be issued pursuant to the exercise of any
Option.
17. RIGHTS OFFERINGS
If at any time the Corporation grants to the holders of Shares rights
to subscribe for and purchase pro rata additional securities of the
Corporation or of any other corporation or entity, there shall be no
adjustments made to the number of Shares or other securities subject to
the Option in consequence thereof and the Option of an optionee shall
remain unaffected and an optionee shall not be entitled to participate
in such rights offering in respect of any Shares the Option for which
has not been exercised at the time of the rights offering.
18. PROVISION OF INFORMATION
At least annually, copies of the Corporation's balance sheet and income
statement for the most recently completed fiscal year shall be made
available to each optionee to whom Options have been granted under this
Plan. The Corporation shall not be required to provide such
information to persons whose duties in connection with the Corporation
assure them access to equivalent information.
19. SHAREHOLDER APPROVAL
The Plan or any increase in the Maximum Number of Shares issuable
thereunder as provided in paragraph 5 of this Plan shall be approved by
the shareholders of the Corporation within 12 months of the date of
adoption thereof by the Board of Directors. Options granted prior to
shareholder approval of the Plan or in excess of the Maximum Number
previously approved by the shareholders shall become exercisable no
earlier than the date of shareholder approval of the Plan or such
increase in the Maximum Number, as the case may be.
20. NO RIGHTS AS A SHAREHOLDER
The optionee shall have no rights whatsoever as a shareholder in
respect of any of the optioned Shares (including any right to receive
dividends or other distributions therefrom or thereon) other than
optioned Shares in respect of which the optionee shall have exercised
such optionee's Option to purchase hereunder and which the optionee
shall have taken up and paid for and for which a share certificate has
been issued to the optionee.
21. NO REPRESENTATION OR WARRANTY
The Corporation makes no representation or warranty as to the future
market value of any Shares issued in accordance with the provisions of
this Plan.
22. GOVERNING LAW
The Plan is established under the laws of the Province of Ontario and
the rights of all parties and the construction and effect of every
provision of the Plan shall be according to the laws of the Province of
Ontario.
IN WITNESS WHEREOF the Board of Directors of OBJECTIME LIMITED has adopted
this Amended and Restated Plan this 7th day of January, 1999.
OBJECTIME LIMITED
By: c/s
-----------------------------------
James McGee, President
OBJECTIME LIMITED
OPTION AGREEMENT
THE SECURITIES TO BE ISSUED HEREUNDER ARE OFFERED FOR SALE AND SOLD IN
RELIANCE UPON EXEMPTIONS FROM THE PROSPECTUS AND REGISTRATION
REQUIREMENT CONTAINED IN SECURITIES LEGISLATION IN CERTAIN PROVINCIAL
JURISDICTIONS WITHIN CANADA. ANY RESALE OF THESE SECURITIES IS
RESTRICTED. THESE SECURITIES MAY NOT BE RESOLD, TRANSFERRED, PLEDGED OR
HYPOTHECATED WITHOUT COMPLIANCE WITH APPLICABLE PROVINCIAL SECURITIES
LAWS IN CANADA. LEGAL ADVICE SHOULD BE OBTAINED BEFORE ANY RESALE OF
THESE SECURITIES.
THIS OPTION AGREEMENT is made as of 'BRDAPPROVAL'.
BETWEEN:
OBJECTIME LIMITED,
A corporation incorporated under the laws of Canada having
its head office at 340 March Road, Kanata, Ontario
(hereinafter referred to as the "Corporation")
AND:
'FIRSTNAME' 'LASTNAME',
(hereinafter referred to as the "Optionee")
IN CONSIDERATION of the mutual covenants herein and other good and
valuable consideration (the receipt and sufficiency of which is hereby
acknowledged by each of the parties), the parties hereto covenant and
agree as follows:
1. OPTION TO PURCHASE SHARES
1.1 Pursuant to the ObjecTime Limited 1998 Canadian Stock Option Plan
(the "Plan"), established by the Corporation effective as of August
14, 1998, the Corporation hereby grants to the Optionee, subject to
the terms and conditions hereinafter set out, an irrevocable option
(the "Option "), to purchase up to an aggregate of 'OPTION98' Class
8 Special Shares (the "Optioned Shares") at the exercise price (the
"Exercise Price") specified below under the heading "Exercise
Price", commencing on the date set forth below under the heading
Vesting Commencement Date ("the Vesting Commencement Date"), until
5:00 p.m. (Ottawa time) on the date specified below under the
heading "Expiry Date" (the "Expiry Date"):
OPTIONED SHARES VESTING EXERCISE EXPIRY DATE
COMMENCEMENT PRICE (CDN $)
DATE
- ----------------- --------------- ---------------- ---------------
<<OPTION98>> <<VESTCOMDATE>> <<$0.65>> <<EXPDATE>>
1.2 The Optionee may exercise and take up and pay for not more
than 50% of the Optioned Shares on or after the first anniversary
of the Vesting Commencement Date. After the first anniversary of
the Vesting Commencement Date the balance of the Optioned Shares
shall vest in equal installments at the rate of 1/24 per month
each month for the 24 months following the first anniversary of
the Vesting Commencement Date. If the number of Optioned Shares
purchased by the Optionee following an Exercise Date is less than
the number of Optioned Shares in respect of which the Option is
then exercisable, the Optionee shall have the right, at any time
prior to the Expiry Date, to exercise the Option and purchase
such number of Optioned Shares in respect of which the Option was
exercisable but which were not purchased by the Optionee
following any such preceding Exercise Date.
1.3 At 5:00 p.m. (Ottawa time) on the Expiry Date the Option
hereby granted shall immediately cease and terminate and be of
no further force or effect whatsoever as to such of the Optioned
Shares in respect of which the Option hereby granted has not then
been exercised.
2. INCORPORATION OF TERMS OF THE PLAN
The terms and conditions relating to the Option contained in the
Plan are hereby incorporated by reference and shall be deemed to be
contained herein as if fully recited herein. In the event of any
conflict between the terms and conditions of the Plan and the terms
and conditions of this agreement, the terms and conditions of the
Plan shall prevail. Unless otherwise specified, capitalized terms
used herein and not defined herein shall have the meaning ascribed
to such terms in the Plan.
3. EXERCISE OF OPTION
Subject to the terms and conditions hereof, including, in
particular, the vesting schedule provided for in paragraph 1.1
hereof, the Option hereby granted shall be exercisable after an
Exercise Date and prior to Expiry Date by the Optionee delivering a
notice (the "Notice of Exercise of Option") in the form attached
hereto as Schedule "A" to the Corporation, or such transfer agent as
the Corporation may from time to time designate. The Notice of
Exercise of Option shall specify therein the number of Optioned
Shares in respect of which the Option is being exercised. Upon any
such exercise of this Option, together with payment in full of the
Exercise Price, the Corporation shall forthwith deliver to the
Optionee within l0 business days following receipt of any such
Notice of Exercise of Option, a certificate or certificates in the
name of the Optionee representing in the aggregate such number of
Optioned Shares as the Optionee shall have then paid for and as are
specified in the Notice of Exercise of Option. Upon the request of
the Corporation the Optionee shall present this agreement to it for
the appropriate endorsement upon any exercise of the Option.
4. TAX WITHHOLDING
At the time the Option is exercised, in whole or in part, or at
any time thereafter as requested by the Corporation, the Optionee
hereby authorizes the withholding from payroll and any other amounts
payable to the Optionee, and otherwise agrees to make adequate
provision for any amounts required to satisfy the tax withholding
obligations, if any, of the Corporation or a Subsidiary which arise in
connection with the Option, including, without limitation, obligations
arising upon (i) the exercise, in whole or in part, of the Option, (ii)
the transfer, in whole or in part, of any Optioned Shares acquired upon
exercise of the Option, (iii) the operation of any law or regulation
providing for the imputation of interest, or (iv) the lapsing of any
restriction with respect to any Optioned Shares acquired upon exercise
of the Option. The Option is not exercisable and the Corporation shall
have no obligation to issue a certificate for such Optioned Shares
unless such tax withholding obligations are satisfied.
5. NO OBLIGATION ON OPTIONEE
Nothing herein contained or done pursuant hereto shall obligate the
Optionee to purchase and/or pay for any Optioned Shares except those
Optioned Shares in respect of which the Optionee shall have
exercised his or her Option hereunder in accordance with the terms
hereof.
6. LEGENDS
The Corporation may at any time place legends referencing any
applicable securities law restrictions on all certificates representing
the Optioned Shares subject to the provisions of this Option Agreement.
The Optionee shall, at the request of the Corporation, promptly present
to the Corporation any and all certificates representing shares
acquired pursuant to the Option in the possession of the Optionee in
order to carry out the provisions of this Section.
7. PUBLIC OFFERING
In the event of any underwritten public offering (including an
initial public offering), of shares made by the Corporation, if so
required by the underwriter, the Optionee shall not offer, sell,
contract to sell, pledge, hypothecate, grant any option to purchase or
make any short sale of, or otherwise dispose of any of the Optioned
Shares or any rights to acquire the Optioned Shares for such period of
time from and after the completion of the public offering as may be
established by the underwriter for such public offering; provided,
however, that such period of time shall not exceed 180 days from the
completion of the public offering. The Optionee shall be subject to this
section only if the officers and directors of the Corporation are also
subject to similar arrangements.
8. NOTICE
8.1 Any notice delivered or to be delivered or given by either party
to the other shall be sufficiently given or delivered if delivered
personally or sent by registered mail prepaid, addressed to the
party at the addresses hereinafter set out and shall be deemed to
have been received on the third business day following the date of
mailing thereof, provided that such notice shall not be deemed to
have been received or sent by registered mail at a time during
postal strikes, slow-downs or other similar delays, and in such
event a party delivering or giving such notice shall give or deliver
the same by hand to the party by whom it is to be received:
TO THE CORPORATION:
OBJECTIME LIMITED
340 March Road
Kanata, Ontario
K2K 2E4
Attention: General Counsel
TO THE OPTIONEE:
'FIRSTNAME' 'LASTNAME'
'STREET' 'STREET2'
'CITY', 'PROVINCE'
'POSTAL'
8.2 Each party shall notify the other immediately following any
change of the address for service provided in paragraph 8.1 hereof
by delivering written notice of the new address to the other party
in the manner set out above.
9. ACKNOWLEDGEMENT OF RECEIPT OF PLAN
The Optionee hereby acknowledges receipt of a copy of the Plan.
The Optionee further acknowledges and agrees that all decisions and
interpretations of the Board of Directors or the Committee with respect
to the Plan or the Option shall be conclusive and binding upon the
Optionee.
10. GENERAL PROVISIONS
10.1 Time shall be of the essence of this agreement.
10.2 This agreement shall be governed and construed in accordance with
the laws of the Province of Ontario and the laws of Canada
applicable therein.
10.3 The parties hereto shall do all further acts and things and
execute all further documents reasonably required in the
circumstances to effect the provisions and intent of this agreement.
10.4 This agreement shall enure to the benefit of and be binding upon
the Optionee and the Corporation and their respective heirs,
executors, administrators, successors and assigns.
10.5 This agreement, including the terms and conditions of the Plan,
constitutes the entire agreement between the Corporation and the
Optionee pertaining to the subject matter hereof and supersedes all
prior agreements, understandings, negotiations, and discussions,
whether oral or written, between the Corporation and the Optionee
pertaining to the subject matter hereof. No amendment of any
provision of this agreement shall be binding unless in writing and
executed by the Corporation and the Optionee.
IN WITNESS WHEREOF this agreement has been executed by the parties
hereto.
SIGNED, SEALED AND DELIVERED
OBJECTIME LIMITED
By:
---------------------------
Tom Reaume, Secretary
---------------------------- ---------------------------
Witness 'FIRSTNAME' 'LASTNAME'
SCHEDULE "A"
NOTICE OF EXERCISE OF OPTION
[DATE]
Attention: President
Dear Sir:
Re: Stock Option
Please be advised that I, being the holder
of an option to purchase Class 8 Special Shares of ObjecTime Limited
(the "Corporation") at the exercise price of CDN$ per share,
hereby exercise my option to purchase of such Class 8
Special Shares (the "Purchased Shares") of the Corporation. I enclose
my cheque payable to the Corporation for $
representing the full purchase price for the Purchased Shares. Please
arrange for delivery to me of a certificate representing the Purchased
Shares registered as follows:
-----------------------------------------------
Name in which certificate is to be registered
-----------------------------------------------
FULL ADDRESS
-----------------------------------------------
The undersigned hereby undertakes to comply, to the satisfaction of
the Corporation and its counsel, with all applicable requirements of
any stock exchange or exchanges upon which any securities of the
Corporation are from time to time listed and any applicable regulatory
authority or authorities.
Yours very truly,
-----------------------------------------------
Signature
-----------------------------------------------
Name (Please print)
OBJECTIME LIMITED
THIS CLASS "8" EMPLOYEE SHAREHOLDING AGREEMENT made the * day of *,
19*.
BETWEEN:
*
of the City of *,
in the Province of Ontario,
(hereinafter referred to as the "Employee")
AND:
ObjecTime Limited, a corporation
incorporated under the laws of
Canada
(hereinafter referred to as the "Corporation")
WHEREAS Employee has exercised an option granted to the Employee by the
Corporation and has thereby acquired certain Class 8 Shares of the
Corporation;
AND WHEREAS the option agreement entered into between the Employee and
the Corporation provides that the Employee shall, as a condition to the
issuance of the shares to the Employee by the Corporation pursuant to the
option agreement, enter into this agreement;
IN CONSIDERATION of the mutual covenants herein contained and the issue
to the Employee of the Employee's Shares, the parties hereto covenant and
agree as follows:
ARTICLE 1.00 -- DEFINITIONS AND INTERPRETATION
1.01 Definitions - As used in this Agreement, the following words and
phrases mean:
(a) "Agreement" means this Agreement and any written amendments
thereto executed by both the Corporation and the Employee;
(b) "Book Value of the Corporation" means the amount paid up in
respect of all Special Shares of the Corporation at the
relevant date together with the aggregate of the retained
earnings and of all other surplus accounts of the
Corporation, determined in accordance with generally accepted
accounting principles, after deducting therefrom all declared
but unpaid dividends, on any shares ranking in priority to
the Employee's Shares;
(c) "Book Value of the Employee's Shares" means the amount
obtained by multiplying the Book Value of the Corporation at
the relevant date by a fraction, the numerator of which is
the total number of the Employee's Shares and the denominator
of which is the total number of issued voting Special Shares
of all classes at the same date;
(d) "Call Notice" means the notice referred to in Section 2.01
hereof;
(e) "Date of Closing" means thirty (30) days after the delivery
of the Call Notice;
(f) "Employee's Shares" means the Class "8" Special Shares
allocated and issued to the Employee under the terms of this
Agreement and all such other shares of the Corporation into
which such Class "8" Special Shares may at any time be
converted, subdivided, consolidated or otherwise transformed;
(g) "Fair Market Value" means the amount determined under
Schedule "A" attached hereto;
(h) "Fair Market Value of the Employee's Shares" means the amount
determined under Schedule "A" attached hereto;
(i) "Founding Shareholders' Agreement" means the agreement among
Ian Engelberg, Garth Gullekson, James McGee, Branislav Selic
and ObjecTime Limited dated the 1st day of January, 1995 to
regulate the rights and obligations of the parties thereto;
(j) "Paid Up Amount of the Employee's Shares" means the actual
amount of money paid to the Corporation by the Employee for
the purchase of the Employee's Shares at the time of their
issue.
(k) "Place of Closing" means the offices of the solicitors for
the Corporation or such other place as may be agreed to by
the Corporation and the Employee;
(l) "Prime Bank Rate" means the commercial lending rate of
interest, expressed as an annual rate, which the
Corporation's principal bankers quote in Ottawa as its prime
lending rate which it charges to its commercial customers for
loans in Canadian funds;
(m) "Purchase Price" means in respect of the purchase and sale of
the Employee's Shares under this Agreement:
(i) the Paid Up Amount of the Employee's Shares, in respect
of all the Employee's Shares acquired by the Employee
during the two year period immediately prior to the
delivery date of the Call Notice;
(ii) the Book Value of the Employee's Shares, in respect of
all the Employee's Shares acquired by the Employee at
any time more than two (2) years and less than four (4)
years immediately prior to the delivery date of the
Call Notice;
(iii) the Fair Market Value of the Employee's Shares, in
respect of all the Employee's Shares acquired by the
Employee at any time more than four (4) years
immediately prior to the delivery date of the Call
Notice.
Provided that, if the amount determined under paragraphs (ii)
and (iii) above is less than the Paid Up Amount, the Purchase
Price shall be the Paid Up Amount.
For purposes of this Agreement and, in particular of the
calculation of the Purchase Price, the Employee's Shares
shall be deemed to have been acquired by the Employee on *.
(n) "Special Shares" means, collectively, all those issued Class
"1" Special Shares, Class "2" Special Shares, Class "3"
Special Shares, Class "4" Special Shares, Class "5" Special
Shares, Class "6" Special Shares, Class "7" Special Shares,
Class "8" Special Shares and any other issued Special Shares
created at any time by the Corporation with an attribute of
sharing pari passu with all other Special Shares;
(o) "Time of Closing" means 2:00 p.m. or such other time on the
Date of Closing as may be agreed to by the Employee and the
Corporation.
[NOTE: Articles 2, 3 and 4 shall be deleted from this agreement in the
event that Shares are acquired as a result of the exercise of an option
under paragraphs 11 or 12.1 of the ObjecTime Limited 1998 Canadian Stock
Option Plan or paragraphs 11 or 12.1 of the ObjecTime Limited 1998 US
Stock Option Plan.]
ARTICLE 2.00 -- "CALL" PRIVILEGE
2.01 Call Notice - At any time after the Employee either resigns from
his or her employment with the Corporation or is terminated for cause (as
defined in the ObjecTime Limited Stock Option Plans) by the Corporation,
the Corporation shall have the right to send a notice in writing to the
Employee requiring the Employee to sell to the Corporation all, but not
less than all, the Employee's Shares and upon receipt of such notice the
Employee shall be required to sell and the Corporation required to
purchase all the said Employee's Shares upon and subject to the terms and
conditions hereinafter set out.
2.02 Purchase Price - The Purchase Price shall be determined as of the
last day of the month in which the Call Notice shall have been given to
the Employee.
ARTICLE 3.00 -- GENERAL SALE PROVISIONS
3.01 Transfer Restriction - Except as provided in Section 2.01 hereof,
the Employee's Shares in the capital of the Corporation may not be
transferred except with the approval, in writing, of at least 75% of the
Special Shares held directly or indirectly by such of Ian Engelberg,
Garth Gullekson, James McGee and Branislav Selic as shall then be
employees of the Corporation.
3.02 Sale Provisions - The provisions of this Article shall apply to
any purchase of the Employee's Shares pursuant to the provisions of
Article 2.00 hereof.
3.03 Method of Payment - The Purchase Price shall be paid in five
equal annual instalments, without interest, commencing on the Date of
Closing and thereafter each instalment to be paid on each of the next
four anniversary dates of the Date of Closing, subject to the following
terms and conditions:
(a) if the purchase price is an amount less than TWENTY-FIVE
THOUSAND ($25,000.00) DOLLARS, it shall be paid in full,
subject to subparagraphs (b) and (c) immediately below, on
the Date of Closing;
(b) all amounts paid in any fiscal year on all purchases of
Special Shares of the Corporation under the Founding
Shareholders' Agreement, this Agreement and under all other
shareholding agreements with other employees or former
employees of the Corporation shall not in any event exceed
20% of the amount of Retained Earnings determined in the
accounts of the Corporation for the immediately preceding
fiscal year of the Corporation, which Retained Earnings shall
be calculated in accordance with generally accepted
accounting principles applied on a basis consistent with the
previous year;
(c) if the Retained Earnings for the immediately preceding fiscal
year shall be inadequate to pay all the amounts payable in
any year for the purchase of Special Shares of the
Corporation, the amount to be paid to the Employee in this
Agreement shall abate on a pro rata basis with all other
amounts required to be paid on the purchases of such Special
Shares of the Corporation and all amounts, in arrears,
required to be paid to the Employee under the terms of this
Agreement shall be carried over to and be paid in the next
year and such unpaid arrears shall bear interest at the Prime
Bank Rate until fully paid, provided that, again in each
year, the limit of 20% shall apply, and so on until all
amounts shall be paid to the Employee hereunder and, in
respect thereof, the oldest amounts owed to the Employee
under this Agreement shall be deemed to be paid first; and
(d) notwithstanding any other terms of this Agreement, any
balance due to the Employee under this Agreement may be
prepaid in whole or in part at any time or times without
notice or bonus.
3.04 Documents on Closing - At the Time of Closing, the Employee
shall:
(a) assign and transfer to the Corporation the Employee's Shares
and shall deliver the required share certificate(s) duly
endorsed for transfer into the Corporation's name;
(b) do all other things required in order to deliver good and
marketable title to the Employee's Shares to the Corporation
free and clear of any claims, liens and encumbrances
whatsoever, including, without limitation, the delivery of
any governmental releases and declarations of transmission.
Provided that, if at the Time of Closing the Employee's
Shares are not free and clear of all claims, liens and
encumbrances, the Corporation may, without prejudice to any
other rights which it may have, purchase the Employee's
Shares subject to such claims, liens and encumbrances. In
that event, the Corporation shall, at the Time of Closing,
assume all obligations and liabilities with respect to such
claims, liens and encumbrances and the Purchase Price payable
by the Corporation for the Employee's Shares shall be
satisfied, in whole or in part, as the case may be, by such
assumption. The amount so assumed shall reduce the Purchase
Price payable at the Time of Closing;
(c) deliver to the Corporation a release by the Employee of all
the Employee's claims against the Corporation with respect to
any matter or thing up to and including the Time of Closing
in respect of the Employee's position as a shareholder of the
Corporation, except for any claims which might arise out of
the transaction of purchase and sale herein contemplated;
(d) either provide the Corporation with evidence reasonably
satisfactory to the Corporation that the Employee is not then
a "non-resident" of Canada within the meaning of the Income
Tax Act (Canada) or provide the Corporation with a
certificate pursuant to Subsection 116(2) of the Income Tax
Act (Canada) with a certificate limit in an amount not less
than the Purchase Price for the Employee's Shares; provided
that if such evidence or certificate is not forthcoming, the
Corporation shall be entitled to make the payment of tax
required under Article 116 of the Income Tax Act (Canada) and
to deduct such payment from the Purchase Price for the
Employee's Shares.
3.05 Release of Employee - At the Time of Closing, the Corporation
shall deliver to the Employee a release by the Corporation of all its
claims against the Employee with respect to any matter or thing arising
as a result of the Employee being a shareholder of the Corporation,
except for any claims which might arise out of the wrongdoing of the
Employee or out of the transaction of purchase and sale herein
contemplated.
3.06 Power of Attorney - If, at the Time of Closing, the Employee
fails to complete the subject transaction of purchase and sale, the
Corporation shall have the right, if not in default under this Agreement,
without prejudice to any other rights which it may have, upon payment of
the Purchase Price payable to the Employee at the Time of Closing to the
credit of the Employee in the main branch of the Corporation's bankers in
the City of Ottawa, to execute and deliver, on behalf of and in the name
of the Employee, such deeds, transfers, share certificates, resignations
or other documents that may be necessary to complete the subject
transaction and the Employee hereby irrevocably appoints the Corporation
as the Employee's attorney with full power and authority available under
the Powers of Attorney Act, R.S.O. 1980, c. 386 to transfer the
Employee's Shares, and, in accordance with the said Act, the Employee
declares that this power of attorney may be exercised during any
subsequent legal incapacity on the Employee's part.
ARTICLE 4.00 -- EMPLOYMENT CONSIDERATION
4.01 Full Consideration - The Employee acknowledges that the Purchase
Price of the Employee's Shares as set out in this Agreement will be and
is a full and fair consideration for such Shares and, in the event that
the Corporation delivers to the Employee a Call Notice under Article 2
hereof, the Employee hereby agrees to accept the Purchase Price in full
and complete satisfaction of any and all rights which the Employee has in
respect of such Employee's Shares and shall release and forever discharge
the Corporation in respect of such Employee's Shares without further
demand, claim or complaint in respect thereof.
ARTICLE 5.00 MANDATORY SALE TO THIRD PARTY
5.01 If an independent third party shall make a bona fide offer
(an "Offer") to purchase all of the shares of the Corporation held by
all of the shareholders of the Corporation which the holders of shares
entitled to not less than 75% of the votes attaching to shares of the
Corporation wish to accept (the "Majority") (such offer to be in cash
or marketable securities readily convertible into cash) but which other
shareholders (the "Minority") do not wish to accept, and such Offer is
conditioned upon its acceptance by all the shareholders, the Majority
may, by notice in writing given to the Minority at any time 30 days or
more prior to the expiry of the Offer, require the Minority to elect to
sell their shares pursuant to the Offer or to purchase from the
Majority at the same price specified in the Offer all of the shares
held by the Majority, such election to be notified to the Majority not
less than 10 days prior to the expiry of the Offer. If the Minority
fail to make the required election within the time so limited they
shall be deemed to have elected to sell their shares pursuant to the
Offer. If the Minority elect to purchase the shares held by the
Majority, such purchase shall be completed and paid for not later than
30 days following such election.
ARTICLE 6.00 -- TERMINATION
6.01 Prior Agreements - All prior agreements between the Employee and
the Corporation regarding the Employee Shares, whether written or oral,
are hereby terminated.
6.02 Termination - Notwithstanding any other provision of this
Agreement to the contrary, this Agreement shall terminate and be of no
effect in the event the Corporation shall cease to be a private company
and, for the purpose thereof, "cease to be a private company" means the
issue under the Business Corporations Act (Ontario) of Articles of
Amendment to delete such of the following clauses as shall be in the
Articles of Incorporation, namely:
(a) any limitation on the number of shareholders;
(b) any restriction on the transfer of shares; and
(c) any prohibition against advertising or issuing shares to the
public.
ARTICLE 7.00 -- GENERAL CONTRACT PROVISIONS
7.01 Share Notation - All certificates for Class "8" Special Shares of
the Corporation representing the Employee's Shares shall have the
following legend endorsed thereon forthwith after the execution of this
Agreement:
"The shares represented by this certificate are
subject to an agreement dated the * day of *,
19*, made between the holder of this certificate
and ObjecTime Limited."
7.02 Share Deposit - The original share certificate for all Employee's
Shares shall be held in escrow safekeeping by the Secretary of the
Corporation and the Employee shall receive a deposit certificate signed
by the Secretary certifying the number of Class "7" Shares so held in
escrow safekeeping by the Secretary on behalf of the Employee.
7.03 Notices - All notices, requests, demands or other communications
by the terms hereof required or permitted to be given by one party to
another shall be given in writing by personal delivery or by registered
mail, postage prepaid, addressed to such other party or delivered to such
other party as follow:
or at such other address as may be given by any of them to the others in
writing from time to time and such notices, requests, demands or other
communications shall be deemed to have been received when delivered, or,
if mailed, forty-eight (48) hours after 12:01 a.m. on the day following
the day of the mailing thereof; provided that if any such notice,
request, demand or other communication shall have been mailed and if
regular mail service shall be interrupted by strikes or other
irregularities, such notices, requests, demands or other communications
shall be deemed to have been received forty-eight (48) hours after 12:01
a.m. on the day following the resumption of normal mail service.
7.04 Time - Time shall be of the essence of this Agreement and of
every part hereof and no extension or variation of this Agreement shall
operate as a waiver of this provision.
7.05 Entire Agreement - This Agreement constitutes the entire
agreement between the parties hereto with respect to the Employee's
Shares and its execution has not been induced by, nor do any of the
parties hereto rely upon or regard as material, any representations or
writings whatsoever not incorporated herein and made a part hereof.
7.06 Binding Nature - This Agreement shall enure to the benefit of and
be binding upon the parties hereto and their respective heirs, executors,
administrators, successors, assigns and legal representatives.
IN WITNESS WHEREOF the parties have duly executed this Agreement this *
day of *, 19*.
SIGNED, SEALED AND DELIVERED
in the presence of:
-------------------------- -----------------------------
ObjecTime Limited
By:
-----------------------------
Name: James McGee
Office: President c/s
By:
-----------------------------
Name: Jim Ablett
Office: Vice President, Finance
FAIR MARKET VALUE OF THE EMPLOYEE'S SHARES
The Fair Market Value of the Employee's Shares shall be determined
by the Board of Directors of the Corporation, having regard to the
following rules and procedures:
(a) that the fair market value of each of the Employee's Shares
shall be identical to the fair market value of each Special
Share of the Corporation without regard to separate classes
of Special Shares;
(b) that the Board of Directors shall carefully review and
examine each of the following sources of information in
determining fair market value, namely:
(i) the financial operating results in the current year
since the last fiscal year end;
(ii) the financial statements of the Corporation in the
three immediately preceding fiscal years, placing major
weight, in its determination, on the performance
results in the most recent fiscal year end;
(iii) the recent determinations, if any, of the fair market
value in Schedule "A" of the Founding Shareholders'
Agreement;
(iv) the recent valuations of the Corporation, if any, made
by a business valuator under the terms of the Founding
Shareholders' Agreement; and
(v) all other relevant considerations in determining the
fair value of the Corporation's Special Shares applied
in accordance with generally accepted valuation
principles; and
(c) that the fair market value of each of the Employee's Shares
as determined by the Board of Directors shall be confirmed as
to its reasonableness by the firm of chartered accountants
retained by the Corporation to review or to audit the
accounts, as the case may be, of the Corporation; and
(d) that the Purchase Price of the Employee's Shares being
purchased and sold under Article 2.00 shall be determined by
dividing the Fair Market Value of all the issued Special
Shares determined in the manner hereinbefore set out by all
the Special Shares then issued and outstanding, of all
classes and multiplying the resulting amount by the number of
the Employee's Shares being purchased and sold as aforesaid
provided that, for the purpose of determining the Fair Market
Value the calculation thereof and the determination of the
number of Special Shares and of the Employee's Shares shall
be made at the end of the month in which the Call Notice
shall have been made.
<PAGE>
Exhibit 5.1
January 11, 2000
Rational Software Corporation
18880 Homestead Road
Cupertino, CA 95014
Re: REGISTRATION STATEMENT ON FORM S-8
Gentlemen:
We have examined the Registration Statement on Form S-8 to be
filed by you with the Securities and Exchange Commission on or about
the date hereof (the "Registration Statement") in connection with the
registration under the Securities Act of 1933, as amended, of an
aggregate of 681,764 shares of your Common Stock (the " Shares")
reserved for issuance under the 1998 Employee Stock Purchase Plan, the
ObjecTime Limited U.S. Stock Option Plan (1997), the ObjecTime Limited
Canadian Stock Option Plan (1997), the 1998 ObjecTime Limited U.S.
Stock Option Plan and the 1998 ObjecTime Limited Canadian Stock Option
Plan. As your legal counsel, we have examined the proceedings taken
and are familiar with the proceedings proposed to be taken by you in
connection with the sale and issuance of the Shares under the Plans. In
addition, for purposes of this opinion we have assumed that the
consideration received by the Company in connection with each issuance
of the Shares will include an amount in the form of cash, services
rendered or property that exceeds the greater of (i) the aggregate par
value of such Shares or (ii) the portion of such consideration
determined by the Company's Board of Directors to be "capital" for
purposes of the Delaware General Corporation Law.
Based upon the foregoing, it is our opinion that, when issued and
sold in the manner referred to in the Plans and pursuant to the
agreements which accompany the Plans, the Shares issued and sold
thereby will be legally and validly issued, fully paid and
non-assessable.
We consent to the use of this opinion as an exhibit to the
Registration Statement and further consent to the use of our name
wherever appearing in the Registration Statement, including any
Prospectus constituting a part thereof, and any amendments thereto.
This opinion may be incorporated by reference in any abbreviated
registration statement filed pursuant to General Instruction E of Form
S-8 under the Securities Act with respect to the Registration
Statement.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1998 Employee Stock Purchase Plan of Rational
Software Corporation, the ObjecTime Limited U.S. Stock Option Plan (1997), the
ObjecTime Limited Canadian Stock Option Plan (1997), the 1998 ObjecTime
Limited U.S. Stock Option Plan and the 1998 ObjecTime Limited Canadian Stock
Option Plan of ObjecTime Limited, of our report dated April 14, 1999, with
respect to the consolidated financial statements and schedule of Rational
Software Corporation included in its Annual Report (Form 10-K) for the year
ended March 31, 1999, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Palo Alto, California
January 11, 2000
Exhibit 23.2
CONSENT OF KPMG LLP, INDEPENDENT AUDITORS
The Board of Directors and Stockholders
Rational Software Corporation:
We consent to incorporation herein by reference of our report dated January 21,
1997, except as to Note 2, which is as of January 31, 1997, relating to the
consolidated statements of operations, stockholders' equity, and cash flows of
Pure Atria Corporation and subsidiaries for the year ended December 31, 1996,
which report appears in the March 31, 1999, annual report on Form 10-K of
Rational Software Corporation.
/s/ KPMG LLP
Mountain View, California
January 11, 2000
