SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934
Filed by the Registrant [X]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[ ] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
[X] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Under Rule 14a-12
OMNIS TECHNOLOGY CORPORATION
(Name of Registrant as Specified In Its Charter)
-------------------------
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
(1) Title of each class of securities to which transaction applies:
(2) Aggregate number of securities to which transaction applies:
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (Set forth the amount on which
the filing fee is calculated and state how it was determined):
(4) Proposed maximum aggregate value of transaction:
(5) Total fee paid:
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing Party:
(4) Date Filed:
<PAGE>
OMNIS LOGO
OMNIS TECHNOLOGY CORPORATION
---------------------
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD ON OCTOBER 23, 2000
TO THE STOCKHOLDERS:
NOTICE IS HEREBY GIVEN that the Annual Meeting of Stockholders of Omnis
Technology Corporation, a Delaware corporation (the "Company" or "Omnis"), will
be held on October 23, 2000, at 1:00 p.m., Pacific Time, at the offices of
Morrison & Foerster LLP, 425 Market Street, 33rd Floor, San Francisco,
California 94105 (415) 268-6465, for the following purposes:
1. To elect three (3) Class III directors to serve until the 2003 Annual
Meeting of Stockholders or until their successors are elected and
shall qualify;
2. To increase the number of shares authorized under the Company's 1999
Stock Option Plan from 1,500,000 to 5,000,000;
3. To ratify the appointment of Grant Thornton LLP as the independent
public accountants of the Company for the fiscal year ending March
31, 2001; and
4. To transact such other business as may properly be brought before the
meeting and any adjournment(s) thereof.
The foregoing items of business are more fully described in the Proxy
Statement accompanying this Notice.
Stockholders of record at the close of business on August 26, 2000, shall
be entitled to notice of and to vote at the meeting. All stockholders are
cordially invited to attend the meeting. However, to assure your representation
at the meeting, you are urged to mark, sign, date, and return the enclosed proxy
card as promptly as possible in the postage-prepaid envelope enclosed for that
purpose. Any stockholder attending the meeting may vote in person even if such
stockholder has returned a proxy.
Sincerely,
Geoffrey Wagner
Secretary
San Carlos, California
October 10, 2000
<PAGE>
<TABLE>
Table of Contents
<CAPTION>
Page
-----
<S> <C>
PROXY STATEMENT .......................................................................... 1
Date, Time and Place of the Annual Meeting ............................................ 1
Purposes of the Annual Meeting ........................................................ 1
Voting Rights of Stockholders ......................................................... 1
Required Vote for Approval ............................................................ 1
Quorum, Abstentions, Broker "Non-Votes" ............................................... 2
Recommendation of the Omnis Board of Directors ........................................ 2
PROPOSALS AT THE ANNUAL MEETING .......................................................... 3
PROPOSAL NO. 1--ELECTION OF DIRECTORS .................................................... 3
Board Meetings and Committees ......................................................... 3
Director Compensation ................................................................. 4
Summary of Cash and Certain Other Compensation ........................................ 5
Summary Compensation Table ............................................................ 5
Aggregated Option Exercises in Last Fiscal Year and Fiscal Year-End Option Values ..... 6
Aggregated Fiscal Year-End Option Values .............................................. 7
Employment Contracts and Termination of Employment .................................... 7
Blyth Holdings Limited Retirement Benefits Scheme ..................................... 7
OMNIS Software Limited Retirement Benefits Scheme ..................................... 7
401(k) Employee Savings Plan .......................................................... 8
Security Ownership of Certain Beneficial Owners and Management ........................ 9
Certain Relationships and Related Transactions ........................................ 9
Section 16(a) Beneficial Ownership Compliance ......................................... 10
Vote Required ......................................................................... 10
Recommendation of the Board ........................................................... 10
PROPOSAL NO. 2--APPROVAL OF THE AMENDMENT TO THE OMNIS 1999 STOCK OPTION PLAN ............ 11
Description of the 1999 Plan .......................................................... 11
Vote Required ......................................................................... 14
Recommendation of the Board ........................................................... 14
PROPOSAL NO. 3--RATIFICATION OF APPOINTMENT OF INDEPENDENT PUBLIC
ACCOUNTANTS ............................................................................. 15
Changes in and Disagreement with Accountants on Accounting
and Financial Disclosure ............................................................. 15
Proposal ..............................................................................
Vote Required ......................................................................... 15
Recomendation of the Board ............................................................ 15
OTHER MATTERS ............................................................................ 16
Stockholder Proposals ................................................................. 16
OTHER BUSINESS ........................................................................... 16
Annual Report ......................................................................... 16
Form 10KSB/A .......................................................................... 16
Deadline for Receipt of Stockholder Proposals ......................................... 16
PROXY CARD ............................................................................... 18
APPENDICES
Proposed Amended 1999 Stock Option Plan .................................................. A-1
</TABLE>
i
<PAGE>
OMNIS TECHNOLOGY CORPORATION
981 INDUSTRIAL WAY
SAN CARLOS, CALIFORNIA 94070
PROXY STATEMENT
Date, Time and Place of the Annual Meeting
The enclosed Proxy Statement is solicited on behalf of the Board of
Directors of Omnis Technology Corporation (the "Board of Directors" or "Board")
for use at the Annual Meeting of Stockholders of the Company to be held at the
offices of Morrison & Foerster, LLP, 425 Market Street, 33rd Floor, San
Francisco, California 94105, (415) 268-6465, on October 23, 2000, at 1:00 p.m.
Pacific Time, and at any adjournment (s) thereof, for the purposes set forth
herein and in the accompanying Notice of Annual Meeting of Stockholders. The
Company's telephone number is (650) 632-7100.
These proxy solicitation materials were mailed on or about October 10,
2000, to all stockholders entitled to vote at the meeting.
Purposes of the Annual Meeting
At the annual meeting, the Omnis stockholders will be asked to:
1. Elect three (3) Class III directors to serve until the 2003 Annual
Meeting of Stockholders or until their successors are elected and
shall qualify;
2. Increase the number of shares authorized under the Company's 1999
Stock Option Plan from 1,500,000 to 5,000,000;
3. To ratify the appointment of Grant Thornton LLP as the independent
public accountants of the Company for the fiscal year ending March
31, 2001; and
4. Transact such other business as may properly be brought before the
meeting and any adjournment(s) thereof.
Voting Rights of Stockholders
The Board of Directors has set the close of business on August 26, 2000 as
the record date for determining stockholders entitled to vote at the annual
meeting. Pursuant to the Company's Bylaws, the holders of fifty percent of the
Company's stock issued and outstanding and entitled to vote at the annual
meeting, present in person or represented by proxy, shall constitute a quorum at
all meetings of the stockholders. At the annual meeting, on all matters, each
share of common stock, par value $0.10 per share, of the Company has one vote
and each share of preferred stock, par value $1.00 per share, of the Company is
treated as though it has been converted into 1.667 shares of common stock for
purposes of voting pursuant to the Restated Certificate of Incorporation of the
Company. Directors are elected by a plurality vote of the voting stock of the
Company voting in person or represented by proxy at a meeting. Stockholders do
not have a right to cumulate their votes in the election of directors. See
"Election of Directors -- Vote Required."
As at August 26, 2000, there are 10,211,797 shares of the Company's common
stock outstanding and 300,000 shares of the Company's preferred stock
outstanding.
Any proxy given by a stockholder may be revoked by the stockholder at any
time before it is voted by delivering a written notice of revocation to the
Secretary of Omnis, by executing and delivering a later-dated proxy or by
attending the annual meeting and giving oral notice of your intention to vote in
person. Attendance at the annual meeting by a stockholder who has executed and
delivered a proxy to Omnis will not in and of itself constitute a revocation of
the proxy.
Required Vote for Approval
Proposal Number One concerning the election of directors requires the
plurality of the votes cast by holders of the common stock and preferred stock
(treated as though converted into 1.667 shares of common
1
<PAGE>
stock) voting together as a class. Proposal Number Two concerning an amendment
to the Company's 1999 Stock Option Plan requires the affirmative vote of
holders of two-thirds of the shares of the common stock and preferred stock
(treated as though converted into 1.667 shares of common stock) voting together
as a class. Proposal Number Three concerning the ratification of the
appointment of the Company's accountants requires the affirmative vote of the
holders of a majority of the shares of common stock and preferred stock
(treated as though converted into 1.667 shares of common stock).
Quorum, Abstentions, Broker "Non-Votes"
Shares that are voted "FOR," "AGAINST," or "WITHHELD" on a matter are
treated as being present at the meeting for purposes of establishing a quorum
and are also treated as "entitled to vote on the subject matter" (the "Votes
Cast") at the Annual Meeting with respect to such matter. While there is no
definitive statutory or case law authority in Delaware as to the proper
treatment of abstentions, the Company believes that abstentions should be
counted for purposes of determining the presence or absence of a quorum for the
transaction of business and the total number of Votes Cast with respect to a
particular matter (other than the election of directors). In the absence of
controlling precedent to the contrary, the Company intends to treat abstentions
in this manner. Accordingly, with the exception of Proposal One for the election
of directors, abstentions will have the same effect as a vote against the
proposal. In addition, because directors are elected by a plurality vote,
abstentions in the election of directors have no impact once a quorum exists. In
a 1988 Delaware case, Berlin v. Emerald Partners, the Delaware Supreme Court
held that while broker "non-votes" may be counted for purposes of determining
the presence or absence of a quorum for the transaction of business, broker
"non-votes" should not be counted for purposes of determining the number of
Votes Cast with respect to the particular proposal on which the broker has
expressly not voted. Broker "non-votes" with respect to proposals set forth in
this Proxy Statement will therefore not be considered "Votes Cast" and
accordingly will not affect the determination as to whether the requisite
majority of Votes Cast has been obtained with respect to a particular matter.
However, broker "non-votes" will have the same effect as a vote against any
proposal which requires the approval of a majority of all outstanding shares of
voting stock of the Company.
Recommendation of the Omnis Board of Directors
The Omnis Board of Directors has unanimously approved and recommends that
Omnis stockholders vote "FOR" approval of the election of the listed directors.
Additionally, the Omnis Board of Directors has unanimously approved and
recommends that Omnis stockholders vote "FOR" approval to increase the number of
shares under the Company's 1999 Stock Option Plan and "FOR" ratification of
appointment of Grant Thornton LLP as the Company's independent public
accountants.
2
<PAGE>
PROPOSALS AT THE ANNUAL MEETING
PROPOSAL NO. 1 -- ELECTION OF DIRECTORS
The Bylaws of Omnis provide that the Board of Directors shall be composed
of seven directors divided into three classes, composed of two members in each
of Classes I and II and three members in Class III. The directors are elected to
serve staggered three-year terms, with the term of one class of directors
expiring each year.
<TABLE>
The following persons are the three Class III directors of the Company and
there are currently no vacancies in Class III of the directors. The term of each
of these Class III directors will expire at the 2000 Annual Meeting of the
Stockholders.
<CAPTION>
Name of Nominee Age* Principal Occupation Director Since
------------------------ ------ -------------------------------------- ---------------
<S> <C> <C> <C>
Bryce Burns ............ 42 Executive of Novell, Inc. 2000
President and Chief Executive Officer
Brian Sparks ........... 38 of Lineo, Inc. 2000
President and Interim Chief Executive
Gwyneth Gibbs .......... 57 Officer of the Company 1999
</TABLE>
At the Annual Meeting the Board will nominate each of Bryce Burns, Brian
Sparks and Gwyneth Gibbs for re-election for an additional term as Class III
directors of the Company:
Except as follows, each nominee or director has been engaged in his or her
principal occupation set forth above during the past five years; there is no
family relationship between any director or executive officer of the Company.
Bryce Burns currently heads the Business Planning and Release Management
Group of Novell, Inc., a major networking software provider. Previously Burns
served as Executive Vice President and Chief Operating Officer of Caldera
Systems, Inc., a leader in the provision of Linux-based business solutions and
also was President of Applied Medical Informatics, Inc. a medical software
company. Mr. Burns holds a BS degree in Medical Biology from the University of
Utah and an MBA from Brigham Young University He is currently the Chairman of
the Board of Omnis.
Brian Sparks is the President and Chief Executive Officer of Lineo, Inc.
Mr. Sparks is one of the Linux operating system's early pioneers and founded
Caldera, Inc. in 1994. In 1998, Caldera Inc. separated into two distinct
Linux-related companies: Caldera Systems, Inc. and Lineo, Inc. Prior to
founding Caldera, Mr. Sparks spent eight years at Novell, Inc., where he held
various engineering and management positions in Novell's Advanced Development
Group. Sparks holds a BS degree in computer science from Brigham Young
University.
Gwyneth Gibbs was appointed President and interim Chief Executive Officer
of the Company in October 1998, and was elected to the Board of Directors in
February 1999. She joined the Company in October 1994, was initially responsible
for Research and Development in Europe and subsequently was assigned world wide
responsibility for Research and Development in January 1998. Prior to joining
the Company, Mrs. Gibbs was Technical Director of an intelligent database
start-up for 6 years, and before that held a number of positions in UK
development organizations
Board Meetings and Committees
The current members of the Board of Directors are: Mrs. Gwyneth Gibbs, Mr.
Bryce Burns, Mr. Brian Sparks, Mr. Douglas Marshall, Mr. Geoffrey Wagner, Mr.
Philip Barrett, and Mr. Gerald Chew. The Board of Directors held a total of nine
meetings and and took one action by written consent during the fiscal year ended
March 31, 2000. No director serving during the fiscal year attended fewer than
75% of the aggregate of all meetings of the Board and the committees of the
Board upon which such director served. Omnis has a Compensation Committee and an
Audit Committee of the Board. The Board of Directors does not have any
nominating committee or any committee performing such functions. The
Compensation Committee is generally responsible for evaluating and recommending
to the Board of
3
<PAGE>
Directors the granting of stock options to employees, including officers, and
other eligible persons, and the setting of compensation for the executive
officers of the Company. The executive officers of the Company have been
delegated the responsibility of administering compensation programs (other than
stock based) for the other employees of the Company, subject to overall budget
review and approval by the Board. The Audit Committee is generally responsible
for recommending engagement of the Company's independent public accountants and
is generally responsible for approving the services performed by such
independent public accountants and for reviewing and evaluating the Company's
accounting principles and its system of internal accounting controls.
Director Compensation
The Company reimburses directors for travel and other out-of-pocket
expenses incurred in attending Board meetings but no cash compensation is
otherwise paid to directors.
The 1993 Directors' Warrant Plan (the "Director Plan") was adopted by the
Board in September 1993 and was approved by the stockholders in August 1994.
The Director Plan provided for automatic non-discretionary grants of warrants
to non-employee Directors ("Outside Directors"). Each Outside Director elected
on or after the date of adoption of the Director Plan was automatically granted
a warrant to purchase 30,000 shares of Omnis common stock upon the date he or
she became a director of the Company (an "Initial Warrant") pursuant to a
vesting schedule related to the term of such director. Mr. Philip Barrett, Mr.
Gerald Chew, Mr. Douglas Marshall, and Mr. Geoffrey Wagner each received such a
grant when they were appointed to the Board. Thereafter, each Outside Director
was automatically granted a warrant to purchase 5,000 shares of the Company's
common stock on September 1 of each year, provided that he or she had served
for at least six (6) months as of such date and was then serving as an Outside
Director ("Subsequent Warrant").
In April 1999, the Board of Directors determined that it was in the best
interests of the Company to adopt the Omnis Technology Corporation 1999 Stock
Option Plan (the "1999 Plan") to consolidate options to be issued to directors,
officers, key employees, consultants and advisors under a single option plan
and to terminate the Director Plan, the 1993 Advisors Plan and the 1996 Stock
Option Plan, except as to warrants and options then issued and outstanding
under such plans. The 1999 Plan was adopted by the Board and 1,500,000 shares
of the common stock of the Company were reserved for issuance under the 1999
Plan. The stockholders of the Company approved the 1999 Plan during the 1999
Annual Stockholders' Meeting.
As of July 20, 2000, warrants to purchase approximately 134,137 shares of
the Company's common stock under the Director Plan were outstanding.
At the 1999 Annual Meeting, the stockholders approved the granting of a
nonincentive stock option to director Gerald Chew in the amount of 96,825
shares of the common stock of the Company, a nonincentive stock option to
director Douglas Marshall representing 96,825 shares of the common stock of the
Company, and an incentive stock option to Mrs. Gibbs representing 65,000 shares
of common stock of the Company under the 1999 Plan. Options granted to such
directors are on terms consistent with the 1999 Plan, with the vesting of the
options for Messrs. Chew and Marshall as of July 31, 1999 and vesting of
one-third of the options of Mrs. Gibbs on July 31, 2000 with monthly vesting of
the remainder of such options in equal installments over the following 24
months; and with an exercise price at the fair market value of the shares
determined by a Special Committee of the Board as of July 31, 1999. Under the
1999 Plan, the relevant option would terminate upon the removal of a director
for cause or death or disability in the case of Messrs. Chew and Marshall; or
upon the termination of the employment or death or disability of Mrs. Gibbs
pursuant to the specific terms of the 1999 Plan.
In February 2000 the Board of Directors elected Bryce Burns to fill the
vacancy in the Class III directors. In connection with the appointment of Mr.
Burns the Board awarded him a director's stock option as of February 14, 2000
in the amount of 96,825 shares of the common stock of the Company at an option
exercise price of $10.42 per share.
4
<PAGE>
Upon becoming a director James Dorst received options for 96,825 shares of
common stock of Omnis. Mr. James Dorst resigned as a director of the Company on
August 14, 2000, and pursuant to the terms of his resignation the right to
exercise the options granted to Dorst as a director was fully vested and
extended until March 31, 2001.
On August 14, 2000, the Board of Directors elected Brian Sparks to fill the
vacancy created by the resignation from the Board of Directors of James Dorst.
In connection with the appointment of Mr. Sparks the Board awarded him a
director's stock option as of August 14, 2000 in the amount of 96,825 shares of
the common stock of the Company at an option exercise price of $6.80 per share.
On September 22, 2000, the Board of Directors appointed current director
Bryce Burns as the new Chairman of the Board of the Company, replacing Phillip
Barrett. In connection with this appointment the Board awarded Mr. Burns an
additional director's option as of September 22, 2000 in the amount of 32,000
shares of the common stock of the Company at an option exercise price of $5.95
per share.
Summary of Cash and Certain Other Compensation
<TABLE>
The following table shows, as to the Chief Executive Officer and each of
the other current executive officers and former executive officers whose salary
plus bonus exceeded $100,000, information concerning compensation awarded to,
earned by or paid for services to the Company in all capacities during the last
three fiscal years:
Summary Compensation Table
<CAPTION>
Long-term
Compensation Awards
---------------------------
Annual Compensation
-----------------------------------------------------
Other Annual All Other
Name and Principal Position Year Salary($) Bonus($) Compensation($) Options Compensation
--------------------------------- ------ ----------- ---------- ----------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Gwyneth Gibbs (1) ............... 2000 107,884 40,000 22,283 65,000 --
Interim Chief Executive Officer, 1999 79,874 33,209 22,855 5,000 --
President 1998 77,117 -- 23,386 -- --
David R. Seaman (2) ............. 2000 141,303 -- 28,762 24,000 --
Chief Technical Officer and 1999 143,253 -- 51,256 5,000 --
Research & Development 1998 142,069 -- 35,150 2,000 --
Director
Matthew Simmons (3) ............. 2000 30,981 -- 106,539 24,000 --
1999 45,004 -- 81,211 3.500 --
1998 32,690 -- 63,645 -- --
<FN>
------------
(1) Mrs. Gibbs, 57* joined the Company in October 1994, was initially
responsible for Research and Development in Europe and subsequently was
assigned worldwide responsibility for Research and Development in January
1998. Mrs. Gibbs was appointed President and interim Chief Executive
Officer of the Company in October 1998, and was elected to the Board of
Directors in February 1999. Prior to joining the Company, Mrs. Gibbs was
Technical Director of an intelligent database start-up for 6 years, and
before that held a number of positions in UK development organizations.
Mrs. Gibbs is paid in U.K. pounds sterling, which have been converted into
U.S. dollars at the exchange rate in effect on March 31 of the applicable
fiscal year. "Other Annual Compensation" represents amounts contributed to
the OMNIS Software Limited Retirement Scheme on Mrs. Gibbs' behalf (an
aggregate of $21,459 in 1998, $20,921 in 1999 and $5,346 in 2000).
(2) Mr. Seaman, 47*, is the Chief Technical Officer of the Company. He has
served as a Vice President of the Company since June 1990 and has served
as Research and Development Director since June 1982. He served as
Managing Director of Blyth Software Ltd. (now Omnis Software Ltd.) from
September of 1990 until June of 1993. Mr. Seaman is paid in U.K. pounds
sterling, which have been converted into U.S. dollars at the exchange rate
in effect on March 31 of the applicable fiscal year. "Other Annual
Compensation" represents the value of the use of an automobile and amounts
paid or reimbursed for automobile use ($3,343 in 1998 and $12,875 in 1999)
and amounts contributed to the Blyth Holdings Limited Retirement Benefits
Scheme and the OMNIS Software Limited Retirement Scheme on Mr. Seaman's
behalf (an aggregate of $31,807 in 1998, $38,381 in 1999 and $27,900 in
2000).
(3) Mr. Simmons, 26*, served as Vice President of North American Operations
from January 1999 until his employment terminated in November of 1999. He
joined the Company in August 1995, and has held a variety of positions
within the UK Sales and Marketing division. Prior to joining the Company,
Mr. Simmons worked for a Rapid Application Development tool vendor for 18
months. Mr. Simmons was paid in U.K. pounds sterling, which have been
converted into U.S. dollars at the exchange rate in effect on March 31 of
the applicable fiscal
5
<PAGE>
year. "Other Annual Compensation" represents the value of the use of an
automobile and amounts paid or reimbursed for automobile use ($10,059 in
1998, $3,603 in 1999 and $6,384 in 2000), a mobile phone ($322 in 1999),
amounts contributed to the OMNIS Software Limited Retirement Scheme on Mr.
Simmons' behalf (an aggregate of $419 in 1998, $1,807 in 1999 and $1,037 in
2000) and commissions ($57,683 in 1998, $71,135 in 1999 and $56,271 in
2000).
(*) Ages are as of July 20, 2000.
</FN>
</TABLE>
Aggregated Option Exercises In Last Fiscal Year and Fiscal Year-End Option
Values
<TABLE>
The following table shows, as to the individuals named in the Summary
Compensation Table above, (the "Named Executive Officers") information
concerning stock options granted during the fiscal year ended March 31, 2000.
This table also sets forth hypothetical gains or "option spreads" for the
options at the end of their respective ten-year terms, as calculated in
accordance with the Rules of the Securities and Exchange Commission. Each gain
is based on an arbitrarily assumed annualized rate of compound appreciation of
the market price at the date of the grant of 5% and 10% from the date the option
was granted to the end of the option term. The 5% and 10% rates of appreciation
are specified by the rules of the Securities and Exchange Commission and do not
represent the Company's estimate or projection of future common stock prices.
Omnis does not necessarily agree that this method properly values an option.
Actual gains, if any, on option exercises are dependent on the future
performance of the Company's common stock and overall market conditions.
<CAPTION>
Option Grants in the Last Fiscal Year
Individual Grants (1)
------------------------------------------------------------------- Potential Realizable
Value at Assumed
Annual Rates of Stock
Number of Price Appreciation
Securities % of Total Options of Option Term (3)
Underlying Granted to ---------------------------
Options Employees in Exercise Expiration
Name Granted (1) Fiscal Year (2) Price ($/Sh) Date 5% ($) 10% ($)
----------------------------- ------------- -------------------- -------------- ----------- ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
Gwyneth Gibbs (5) ........... 65,000 7.03% $ 3.88 7/31/09 $ 158,607 $ 401,942
David R. Seaman ............. 24,000 2.60% 1.02 4/13/09 15,395 39,015
Matthew Simmons (4) ......... 24,000 2.60% 1.02 4/13/09 15,395 39,015
<FN>
------------
(1) Options granted under the Company's 1999 Stock Option Plan are granted with
an exercise price determined with reference to the of fair market value of
the Company's common stock at the date of grant and vest over the periods
started in such options.
(2) During the fiscal year ended March 31, 2000, the Company granted a total of
924,825 options to employees.
(3) This column sets forth hypothetical gains or "option spreads" for the
options at the end of their respective ten-year terms, as calculated in
accordance with the rules of the Securities and Exchange Commission. Each
gain is based on an arbitrarily assumed annualized rate of compound
appreciation of the market price at the date of grant of 5% and 10% from the
date the option was granted to the end of the option term. The 5% and 10%
rates of appreciation are specified by the rules of the Securities and
Exchange Commission and do not represent the Company's estimate or
projection of future performance of the Company's common stock and overall
market conditions.
(4) Mr. Simmons resigned in November of 1999 prior to the vesting of these
options granted to him.
(5) Employees who are eligible may participate in the 1994 Stock Purchase Plan
("Purchase Plan") to purchase up to $25,000 of shares of the common stock of
the Company during each calendar year at 85% of fair market value as
described in more detail below in "Other Employee Benefit Plans - 1994
Employee Stock Purchase Plan." Mrs. Gibbs purchased 40,132 shares under the
Purchase Plan during fiscal year 2000. Mr. Seaman and Mr. Simmons elected
not to purchase shares under the Purchase Plan during fiscal 2000. As of
July 20, 2000, Mrs. Gibbs and Mr. Seaman were eligible to participate in the
Purchase Plan.
</FN>
</TABLE>
6
<PAGE>
No options were exercised by the Named Executive Officers during the last
fiscal year. The following table shows, as to the Named Executive Officers, the
value of unexercised options at March 31, 2000.
Aggregated Fiscal Year-End Option Values
Number of Securities Underlying
Unexercised
Options/SARS at March 31, 2000 (1)
-----------------------------------------------
Name Exercisable Unexercisable Value(3)
----------------------------- ------------- --------------- -------------
Gwyneth Gibbs ............... 4,951 68,049 $1,034,327
David R. Seaman ............. 14,764 27,236 $ 418,140
Matthew Simmons (2) ......... 0 0 --
------------
(1) The Company has not granted any stock appreciation rights and its stock
plans do not provide for the granting of such rights.
(2) Mr. Simmons resigned in November of 1999 therefore all of his options
expired at year end.
(3) In accordance with SEC rules, values are calculated by subtracting the
exercise price from the fair market value of the underlying common stock.
For purposes of this table, fair market value is deemed to be closing bid
price of the common stock on 3/31/00, which was $19.00 per share.
Employment Contracts and Termination of Employment.
The Service Agreement effective April 1, 1990 between Omnis and Mr. Seaman
retains Mr. Seaman as the Company's Chief Technical Officer for an initial term
of four years, which is automatically renewed for subsequent two year terms
unless the agreement is terminated by either party by delivery of six months
prior notice. The Service Agreement was automatically renewed for two year
terms in April 1994, April 1996, and April 1998. It provides for an annual base
salary of 48,000 pounds sterling, with annual increases based on a United
Kingdom consumer index throughout the term of the agreement. In addition, Mr.
Seaman is entitled to an annual incentive bonus of 25% of his base salary if
certain annual profitability goals are achieved (no bonuses have been paid to
date), to an automobile and payments or reimbursements for automobile expenses,
and to Company contributions to a retirement plan on his behalf. See "Blyth
Holdings Limited Retirement Benefits Scheme" and "OMNIS Software Limited
Retirement Benefits Scheme."
Blyth Holdings Limited Retirement Benefits Scheme
Omnis, through its United Kingdom subsidiary, OMNIS Holdings Limited
(formerly Blyth Holdings Limited), sponsors a retirement plan, the Blyth
Holdings Retirement Benefits Scheme (the "BRBS Retirement Plan"). The only
participant in the BRBS Retirement Plan is David R. Seaman. Participation in
the BRBS Retirement Plan is frozen; no additional employees may participate.
The BRBS Retirement Plan provides retirement benefits upon attainment of normal
retirement age and incidental benefits in case of death or termination of
employment prior to retirement. A participant's normal retirement benefit is
66.66% of his final remuneration, reduced if the participant has less than ten
years of service with OMNIS Holdings Limited. OMNIS Holdings Limited makes
annual contributions under the BRBS Retirement Plan to fund promised retirement
benefits. The BRBS Retirement Plan is partially insured through the Sun Life
Assurance Society. The assets held under the BRBS Retirement Plan which are not
used to pay insurance premiums are held in trust for investment purposes for
the benefit of the BRBS Retirement Plan. OMNIS Holdings Limited retains the
right to terminate the BRBS Retirement Plan at any time upon thirty days prior
written notice. Company contributions to this scheme were suspended at the
Chief Technical Officer's request with effect from December 31, 1999 although
there is the option for payments to be resumed at some future date.
OMNIS Software Limited Retirement Benefits Scheme
Omnis also sponsors a retirement plan called the OMNIS Software Ltd.
Retirement Benefits Scheme (the "OMNIS Software Retirement Plan") for
substantially all employees of OMNIS Software Limited (formerly OMNIS Software
Limited). The OMNIS Software Retirement Plan provides retirement benefits upon
attainment of normal retirement age and incidental benefits in case of death or
termination of
7
<PAGE>
employment prior to retirement. OMNIS Software Limited makes annual
contributions under the OMNIS Software Retirement Plan to fund promised
retirement benefits. In addition, participants are entitled to make voluntary
contributions under the OMNIS Software Retirement Plan to increase their
benefits. Currently, OMNIS Software Limited contributes an amount ranging from
3% to 8% of each participants' compensation under the OMNIS Software Retirement
Plan. OMNIS Software Limited retains the right to terminate the OMNIS Software
Retirement Plan at any time upon thirty days prior written notice.
401(k) Employee Savings Plan
Omnis established a 401(k) Employee Savings and Retirement Plan (the
"401(k) Plan") in November 1992. The 401(k) Plan is a qualified profit sharing
plan and salary deferral program under the federal tax laws and is administered
by the Company. All employees of the Company (except for certain specifically
excluded classifications as defined in the 401(k) Plan) are eligible to
participate in the 401(k) Plan on the first day of each quarter upon attainment
of age 21. Participants may defer from 1% to 15% of their total salary
(including bonuses and commissions) each pay period through contributions to
the 401(k) Plan. The Company makes a matching contribution of 10% of the amount
contributed by the participant up to a maximum of 15% of the salary deferral.
All salary deferral and Company matching contributions are credited to separate
accounts maintained in trust for each participant and are invested, at the
participant's direction, in one or more of the investment funds available under
the 401(k) Plan. All account balances are adjusted at least annually to reflect
the investment earnings and losses of the trust fund.
Each participant is fully vested in the portion of his or her account
under the 401(k) Plan which such participant contributed. The portion
contributed by the Company vests over five years. Distribution may be made from
a participant's account upon termination of employment, retirement, disability,
death or in the event of financial hardship or attainment of age 59 1/2.
The federal tax laws limit the amount which may be added to a
participant's account for any one year under a qualified plan such as the
401(k) Plan to the lesser of (i) $30,000 or (ii) 25% of the participant's
compensation (net of salary deferral contributions) for the year. In addition,
not more than $10,500 of compensation may be deferred by a participant through
salary deferral contributions in any one calendar year.
8
<PAGE>
Security Ownership of Certain Beneficial Owners and Management
<TABLE>
The following table sets forth as of August 26, 2000, certain information
with respect to the beneficial ownership of the Company's voting securities by
(i) any person (including any "group" as that term is used in Section 13 (d)
(3) of the Exchange Act) know by the Company to be the beneficial owner of more
than 5% of any class of the Company's voting securities, (ii) each director and
each nominee for director, (iii) each of the named executive officers
identified in the Summary Compensation Table appearing herein, and (iv) all
directors and executive officers of the Company as a group.
<CAPTION>
Number of Percent of Number of Percent of
Shares of Total of Shares of Total of
Preferred Preferred Common Common
Name and Address (1) Stock (2) Stock (2) Stock Stock
---------------------------------------------------- ----------- ------------ ----------- -----------
<S> <C> <C> <C> <C>
Astoria Capital Partners L.P.(3) ................... 300,000 100% 4,051,644 34.96%
6600 SW 92nd Avenue
Suite 370
Portland, Oregon 97223
Geoffrey Wagner (4) ................................ 2,302,500 19.87%
Phillip Barrett (5) ................................ 1,672,500 14.43%
Matthew Simmons .................................... 172,280 1.49%
Larry Barcot (6) ................................... 171,673 1.48%
Gerald Chew (7) .................................... 119,325 1.03%
Douglas Marshall (8) ............................... 119,325 1.03%
James Dorst (9) .................................... 96,825 *
Gwyneth Gibbs (10) ................................. 32,790 *
David Seaman (11) .................................. 28,126 *
Bryce Burns ........................................ -- *
Brian Sparks ....................................... -- *
All Directors and Officers as a group (12) ......... 4,715,344 40.68%
<FN>
------------
* less than 1%
(1) Except as otherwise indicated below, the persons whose names appear in the
table above have sole voting power and investment power with respect to
all shares of stock shown as beneficially owned by them, subject to
community property laws, where applicable.
(2) "Preferred Stock" refers to the Series A Convertible Preferred Stock,
which is convertible into 1.667 shares of Omnis common stock.
(3) Excludes assumed conversion of Series A Convertible Preferred Stock and
warrants to purchase 26,479 of Omnis common stock.
(4) Includes warrants to purchase 22,500 shares of the Company's common stock
convertible within 60 days of August 26, 2000 held by Mr. Wagner,
1,420,000 shares of the Company's common stock owned by Rockport Group LP,
of which Mr. Wagner is the sole general partner, 850,000 shares of common
stock owned by RCJ Capital Partners LP, of which Rockport Group LP is the
sole general partner; Director Geoffrey Wagner is the sole general partner
of Rockport Group LP, and 10,000 shares of common stock purchased on April
5, 1999 by a trust of which the reporting person's wife is the sole
beneficiary; and the reporting person disclaims beneficial ownership of
such 10,000 shares except to the extent of his pecuniary interest in such
shares. Grants of warrants subject to qualification with state securities
laws.
(5) Includes warrants to purchase 22,500 shares of the Company's common stock
convertible within 60 days of August 26, 2000 held by Mr. Barrett and
1,650,000 shares of the Company's common stock owned by Phillip and Debra
Barrett Charitable Remainder Trust, of which Mr. Barrett is a trustor and
a trustee. Grant of warrants subject to qualification of state securities
laws.
(6) Represents options to purchase 164,311 shares of the Company's common
stock held by Mr. Barcot.
(7) Represents options to purchase 96,825 shares of common stock and warrants
to purchase 22,500 shares of common stock of the Company.
(8) Represents options to purchase 96,825 shares of common stock and warrants
to purchase 22,500 shares of common stock of the Company.
(9) Represents options to purchase 96,825 shares of the Company's common stock
exercisable until March 31, 2001.
(10) Includes options to purchase 32,790 shares of the Company's common stock
excercisable within 60 days of August 31, 2000.
(11) Includes options to purchase 28,126 shares of the Company's common stock
excercisable within 60 days of August 31, 2000.
(12) Includes all of the shares, options and warrants described in footnotes 3
to 11.
</FN>
</TABLE>
Certain Relationships and Related Transactions
On December 23, 1999, Omnis obtained a $3,000,000 line of credit from
Astoria Capital Partners, L.P. ("Astoria") pursuant to the terms of a Credit
Facility Agreement dated as of December 21, 1999 (the "Credit Facility
Agreement"). The line of credit had a term of six months and was extended by
the further agreement of Omnis and Astoria on April 30, 2000 for an additional
period of four months and was further amended as of August 31, 2000. Under
these arrangements Omnis was entitled to draw up to
9
<PAGE>
$500,000 from the line of credit per month as set forth in the Credit Facility
Agreement. In connection with the issuance of the line of credit, Omnis issued
a promissory note in the principal amount of up to $3,000,000 to Astoria dated
as of December 21, 1999 and amended on April 30, 2000 and August 31, 2000. All
principal and accrued interest on the promissory note is due and payable on
October 31, 2000 or upon a Change of Control (as such term is defined in the
Credit Facility Agreement), if earlier. The promissory note bears interest at
8% per annum and has a default rate of interest of 10% per annum. The
promissory note is secured by certain assets of the Company. While any debt is
outstanding or the line of credit remains in effect, except for any debt owing
to the Astoria or debt issued contemporaneously with payment of the debt in
full and termination of the line of credit, Omnis shall not incur any
indebtedness without the written consent of Astoria, except that Omnis may
incur junior debt in the aggregate principal amount of up to $500,000 in
connection with the purchase or lease of property (whether or not in the
ordinary course of business).
In addition, and also in connection with the issuance of the line of
credit, the Company issued to Astoria a Non-Transferable Warrant to purchase
shares of capital stock of the Company.
Section 16(a) Beneficial Ownership Compliance
Section 16(a) of the Securities Exchange Act of 1934 requires the
Company's officers and directors, and persons who own more than ten percent of
a registered class of the Company's equity securities, to file reports of
ownership on Form 3 and changes in ownership on Form 4 or 5 with the SEC and
the National Association of Securities Dealers, Inc. Such officers, directors
and ten-percent stockholders are also required by SEC rules to furnish the
Company with copies of all forms that they file pursuant to Section 16(a).
Based solely on its review of the copies of such forms received by it, the
Company believes that all Section 16(a) filing requirements applicable to its
officers, directors and ten-percent stockholders were complied with in a timely
fashion, except Astoria Capital Partners L.P. filed two late reports, each of
which was related to one transaction, and failed to file Form 5 related to the
fiscal year ended March 31, 1999, Mr. Wagner filed two late reports, each of
which was related to one transaction, and Mr. Barrett failed to file Form 5
related to the fiscal year ended March 31, 1999.
Vote Required
The approval of the nominees as directors requires the affirmative vote of
the holders of a plurality of the shares of Omnis common stock and preferred
stock voting together as a class, present, or represented at the Omnis annual
meeting.
Recommendation of the Board
The Board of Directors of Omnis unanimously recommends that stockholders
vote FOR election of all of the nominees for directors.
10
<PAGE>
PROPOSAL NO. 2--APPROVAL OF THE AMENDMENT TO THE OMNIS 1999 STOCK OPTION PLAN
At the Annual Meeting of Stockholders, Omnis stockholders will be asked to
vote on the proposed amendment and restatement of the Omnis Technology
Corporation 1999 Stock Option Plan (the "1999 Plan") to increase the number of
shares authorized for issuance thereunder from 1,500,000 shares to 5,000,000
shares.
The 1999 Plan provides for the issuance of stock options and stock awards
covering up to 1,500,000 shares of Omnis common stock. The Omnis Board of
Directors has concluded that an increase in the authorized number of shares
under the 1999 Plan is in the best interests of Omnis and its stockholders. The
increase will enable Omnis to retain talented employees and to attract talented
new employees by offering them participation in the 1999 Plan. Management of
Omnis believes that without this incentive it will be unable to attract and
retain the services of those individuals essential to the Company's growth and
financial success.
Description of the 1999 Plan
In April 1999, the Board of Directors adopted the 1999 Plan in order to
consolidate options to be issued to directors, officers, key employees,
consultants and advisors under a single option plan and to terminate prior
stock plans and 1,500,000 shares of the common stock of the Company were
reserved for issuance under the 1999 Plan. The 1999 Plan was approved by the
stockholders of the Company at the Annual Meeting of Stockholders on September
29, 1999. The essential terms of the 1999 Plan, as proposed to be amended, are
summarized below. This summary is not intended to be a complete description of
all terms of the 1999 Option. A copy of the proposed Amended 1999 Plan is
attached to this proxy statement as Appendix A.
Structure. The 1999 Plan was established to create additional incentives
for employees, directors, consultants and advisors of Omnis. Both (i) options
which qualify as stock options under Section 422 of the Code ("Incentive
Options") and (ii) options which are nonincentive stock options ("Non-Incentive
Options") may be granted under the 1999 Plan. The Incentive Options and
Non-Incentive Options are referred to collectively as the "Options." The
principal features of each program are described below.
Administration. The 1999 Plan provides that the Board is the initial plan
administrator, however, the Board may appoint a committee to administer the
1999 Plan.
Eligibility. Employees, officers, directors, consultants and/or advisors
of Omnis or any parent or subsidiary of Omnis are eligible to participate in
the 1999 Plan, with options granted at the discretion of the Board of
Directors. As of August 26, 2000, 4 executive officers, approximately 53 other
employees and 5 non-employee board members were granted options under the 1999
Plan.
Share Reserve. The maximum number of shares of common stock reserved for
issuance under the 1999 Plan will be 5,000,000 shares if this proposal is
adopted. The shares issuable under the 1999 Plan may be made available either
from Omnis' authorized but unissued common stock or from common stock
reacquired by Omnis, including shares purchased in the open market. In
addition, shares subject to any outstanding options under the 1999 Plan that
expire or terminate prior to exercise and any unvested shares reacquired by
Omnis pursuant to its repurchase rights under the 1999 Plan will be available
for subsequent issuance.
Changes in Capitalization. In the event Omnis shall change the outstanding
shares of its common stock into a different number or class of shares by means
of any merger, consolidation, recapitalization, reorganization,
reclassification, stock split, reverse stock split, stock dividend,
combination, exchange or other comparable change in the corporate structure of
Omnis effected without receipt of consideration, then the Board shall make
appropriate adjustments to the number and/or class of shares issuable pursuant
to exercise of the option (the "Option Shares") and the exercise price for each
Option Share (the "Option Price") and with regard to the maximum number and/or
class of shares of common stock of Omnis issuable under the 1999 Plan, in order
to prevent the dilution of benefits provided under such Options and under the
1999 Plan.
11
<PAGE>
Option Price. The Option Price shall be determined in the sole discretion
of the Board from time to time; provided, however that: (i) the Option Price
for Incentive Options shall not be less than one hundred percent of the fair
market value of the Option Shares as of the date of the option was granted (the
"Grant Date"); except that the Option Price for the Incentive Options of a
shareholder possessing more than ten percent of the total combined voting power
or value of all class of the Company's stock (or any subsidiary) shall not be
less than one hundred and ten percent of the fair market value of the Option
Shares as of the Grant Date and (ii) the Option Price for Non-Incentive Options
shall not be less than eighty five percent of the fair market value of the
Option Shares as of the Grant Date, except that the Option Price for
Non-Incentive Options of a shareholder possessing more than ten percent of the
total combined voting power or value of all class of the Company's stock (or
any subsidiary) shall not be less than one hundred and ten percent of the fair
market value of the Option Shares as of the Grant Date.
Vesting. The right to exercise any option granted under the 1999 Plan
shall vest at the rate of at least twenty percent (20%) per year over five (5)
years from the Grant Date of the option in all events, subject to reasonable
conditions such as the continued employment of the optionee. Except as
otherwise expressly provided in the relevant agreement entered into between the
optionee and Omnis and subject to the expiration or earlier termination of the
option, the vesting period of the option shall be for a period of four (4)
years as follows:
(i) The optionee shall have no right to exercise any part of the option
at any time prior to the expiration of the one (1) year from the Grant Date
of the option;
(ii) The option shall become exercisable with respect to Twenty-Five
Percent (25%) of the Option Shares upon the expiration of one (1) year from
the Grant Date of the option; and
(iii) The option thereafter shall become exercisable with respect to an
additional Two and Eight Point Thirty Three Hundredths Percent (2.0833%) of
the Option Shares for each month following the expiration of one (1) year
from the Grant Date of the option.
Exercisable installments may be exercised by the optionee in whole or in
part and to the extent not exercised shall accumulate and be exercisable as
provided. Omnis is not required to issue fractional shares at any time.
Special Tax Election. At the time an option is exercised in whole or in
part, or at any time thereafter as requested Omnis, the optionee shall
authorize payroll withholding and otherwise shall agree to make adequate
payments to Omnis for all federal, state and other jurisdiction tax withholding
obligations of Omnis which may arise in connection with the option.
Amendment and Termination. The 1999 Plan shall terminate upon the earlier
of (i) April 2009, or (ii) the date on which all shares available for issuance
under this Plan shall have been issued pursuant to the exercise of options
granted hereunder, or (iii) by action of the Board. The Board may terminate or
amend the 1999 Plan at any time, however, some amendments may require
shareholder approval pursuant to applicable laws and regulations. Any options
outstanding at the time of termination of the 1999 Plan will remain in force in
accordance with the provisions of the instruments evidencing the grants.
Certain Federal Income Tax Information. The following summary of the U.S.
federal income tax consequences of 1999 Plan transactions is based upon U.S.
federal income tax laws in effect on the date of this proxy statement. This
summary does not purport to be complete, and does not discuss foreign, state or
local tax consequences.
Incentive Options. No taxable income is recognized by the optionee at the
time of the option grant, and no taxable income is generally recognized at the
time the option is exercised. However, the difference between the fair market
value of the shares on the exercise date and the exercise price paid for the
shares is classified as an item of adjustment in the year of exercise for
purposes of the alternative minimum tax. In addition, the optionee shall
recognize taxable income in the year in which the purchased shares are sold or
otherwise made the subject of disposition. For federal tax purposes,
dispositions are divided into two categories: (1) qualifying and (2)
disqualifying. The optionee makes a qualifying disposition of the purchased
shares if the sale or other disposition of the shares is made after the
optionee has held the shares for more than two years after the grant date of
the option and more than one year after the exercise
12
<PAGE>
date. If the optionee fails to satisfy either of these two minimum holding
periods prior to the sale or other disposition of the purchased shares, then a
disqualifying disposition shall result.
Upon a qualifying disposition of the shares, the optionee shall recognize
long-term capital gain in an amount equal to the excess of (1) the amount
realized upon the sale or other disposition of the purchased shares over (2)
the exercise price paid for those shares. If there is a disqualifying
disposition of the shares then the lesser of (1) the difference between the
amount realized on disposition of the shares and the exercise price paid for
those shares or (2) the difference between the fair market value of the shares
on the exercise date and the exercise price paid for the shares shall be
taxable as ordinary income. Any additional gain recognized upon the disposition
shall be a capital gain.
If the optionee makes a disqualifying disposition of the purchased shares,
then Omnis shall be entitled to an income tax deduction, for the taxable year
in which the disposition occurs, equal to the amount of ordinary income
recognized by the optionee. In no other instance shall Omnis be allowed a
deduction with respect to the optionee's disposition of the purchased shares.
Nonstatutory or Non-Incentive Options. No taxable income is recognized by
an optionee upon the grant of a nonstatutory or non-incentive option. The
optionee shall in general recognize ordinary income in the year in which the
option is exercised equal to the excess of the fair market value of the
purchased shares on the exercise date over the exercise price paid for the
shares, and the optionee shall be required to satisfy the tax withholding
requirements applicable to the income. Special provisions of the Internal
Revenue Code apply to the acquisition of unvested shares of Omnis common stock
under a nonstatutory option. These special provisions are summarized below.
If the shares acquired upon exercise of the nonstatutory option are
subject to repurchase by Omnis at the original exercise price in the event of
the optionee's termination of service prior to vesting in those shares, then
the optionee shall not recognize any taxable income at the time of exercise but
shall have to report as ordinary income, as and when Omnis' repurchase right
lapses, an amount equal to the excess of (1) the fair market value of the
shares on the date the repurchase right lapses with respect to those shares
over (2) the exercise price paid for the shares.
The optionee may, however, elect under Section 83(b) of the Internal
Revenue Code to include as ordinary income in the year of exercise of the
nonstatutory option an amount equal to the excess of (1) the fair market value
of the purchased shares on the exercise date over (2) the exercise price paid
for the shares. If the Section 83(b) election is made, the optionee shall not
recognize any additional ordinary income as and when the repurchase right
lapses.
Omnis shall be entitled to an income tax deduction equal to the amount of
ordinary income recognized by the optionee with respect to the exercised
nonstatutory option. In general, the deduction shall be allowed for the taxable
year of Omnis in which the ordinary income is recognized by the optionee.
<TABLE>
Amended Plan Benefits. Omnis cannot now determine the number of options to
be granted in the future under the 1999 Plan, as proposed to be amended, to all
current executive officers as a group, all current members of the Board
excluding current executive officers as a group or all employees (excluding
current executive officers) as a group. The following table sets forth
information with respect to options granted under the 1999 Plan during fiscal
2000:
<CAPTION>
Weighted
Average
Options % of Total Exercise Price
Identity of Group Granted Options Granted Per Share
--------------------------------------------------------------- --------- ----------------- ---------------
<S> <C> <C> <C>
Chief Executive Officer ....................................... 65,000 5.34 $ 8.50
Executive officers as a group ................................. 260,825 21.42 6.14
Employees that are not executive officers, as a group ......... 580,255 47.64 6.88
Directors that are not executive officers, as a group ......... 290,475 23.85 6.67
</TABLE>
On August 26, 2000, the closing price of a share of the Company's common
stock as reported by the Nasdaq SmallCap Market was $8.25.
13
<PAGE>
Vote Required
Certain California securities laws provide that the total number of shares
called for under any stock bonus or similar plan shall not exceed a number of
shares which is equal to 30% of the then outstanding shares of the issuer
(convertible preferred or convertible senior common shares being counted on an
as converted basis), unless a percentage higher than 30% is approved by at
least two-thirds of the outstanding shares entitled to vote. The proposed
increase in the number of shares under the 1999 Plan (from 1,500,000 shares to
5,000,000 shares) will exceed 30% of Omnis outstanding shares as of the date of
such increase. Therefore, the approval of the proposed amendment of the 1999
Plan requires the affirmative vote of holders of two-thirds of the stockholders
of Omnis, voting together as a class.
Recommendation of the Board
The Board of Directors unanimously recommends a vote FOR approval of the
proposed amendment of the Omnis Technology Corporation 1999 Stock Option Plan.
14
<PAGE>
PROPOSAL NO. 3--RATIFICATION OF APPOINTMENT OF INDEPENDENT PUBLIC ACCOUNTANTS
At the 1998 Annual Meeting, the stockholders ratified the appointment of
Deloitte & Touche LLP as the Company's independent accountants. On November 10,
1998, Deloitte & Touche LLP resigned as the Company's independent accountants.
On March 15, 1999 the Company engaged the services of Grant Thornton LLP
("Grant Thornton") as its independent accountants. At the 1999 Annual Meeting,
the stockholders ratified the appointment of Grant Thornton as the Company's
independent accountants. Grant Thornton was the Company's principal accountant
for the audit of the consolidated balance sheet of Company as of March 31, 1999
and for the fiscal year ending on March 31, 2000 and the related consolidated
statements of operations, stockholders' equity (deficiency) and cash flows for
the years then ended and the related schedules.
Changes in and Disagreements with Accountants on Accounting and Financial
Disclosure
In connection with the audits of the Company's financial statements for
the two fiscal years ended on March 31, 1999 and March 31, 2000, and through
June 30, 2000, the Company did not have any disagreements with either Deloitte
& Touche LLP or Grant Thornton on any matter of accounting principles or
practices, financial statement disclosure, or auditing scope or procedure,
which disagreements, if not resolved to the satisfaction of Deloitte & Touche
LLP or Grant Thornton, would have caused Deloitte & Touche LLP or Grant
Thornton to make reference thereto in their report on the financial statements
for such years. The independent auditors' report included in the Company's
financial statements for the year ended March 31, 1999 expressed an unqualified
opinion and included an explanatory paragraph concerning certain factors which
then raised substantial doubt about the Company's ability to continue as a
going concern. The independent auditor's report dated May 26, 2000, included in
the Company's financial statements for the year ended March 31, 2000 (in the
Company's Form 10-KSB filed July 31, 2000), expressed an unqualified opinion.
During the two fiscal years ended on March 31, 1999 and March 31, 2000, and
through June 30, 2000, there were no reportable events, as defined in
Regulation S-B Item 304(a)(1)(iv). The Company provided Deloitte & Touche LLP a
copy of the disclosures contained in this paragraph of the Proxy Statement
prior to filing the Proxy Statement with the Securities and Exchange
Commission. The Company has requested that Deloitte & Touche LLP furnish a
letter addressed to the SEC stating whether it agrees or disagrees with any of
the statements contained in this paragraph as they relate to Deloitte & Touche
LLP. A copy of the letter will be filed with the Securities and Exchange
Commission within the earlier of ten days of filing this Proxy Statement with
the Securities and Exchange Commission or within two business days of receipt.
In the period from November 10, 1998 through the date of the engagement of
Grant Thornton and through the current date, the Company did not engage in any
activities required to be disclosed under Item 304(a)(2) of Regulation S-B.
Proposal
The Board of Directors has selected Grant Thornton LLP, independent public
accountants, to audit the financial statements of the Company for the fiscal
year ending March 31, 2001, and recommends that the stockholders vote for
ratification of such appointment. In the event of a negative vote on
ratification, the Board of Directors will reconsider its selection.
Representatives of Grant Thornton LLP are expected to be present at the meeting
with the opportunity to make a statement if they desire to do so, and are
expected to be available to respond to appropriate questions.
Vote Required
The ratification of the appointment of the independent public accountants
requires the affirmative vote of a majority of the shares of the Company's
voting stock on an as converted basis present or represented and entitled to
vote on this subject matter at the meeting.
Recommendation of the Board
The Board of Directors unanimously recommends a vote "FOR" ratification of
the appointment of Grant Thorton LLP as the independent public accountants of
the Company.
15
<PAGE>
OTHER MATTERS
Stockholder Proposals
Proposals of stockholders that are intended to be presented at the
Company's annual meeting of stockholders for the fiscal 2001 year must be
received by June 12, 2001, to be included in the Proxy Statement and proxy
relating to that meeting. Proposals of stockholders that will not be included
in the Proxy Statement, but will nevertheless be eligible for consideration at
the 2001 annual meeting, must be received by August 27, 2001.
OTHER BUSINESS
The Board of Directors knows of no other business that will be presented
for consideration at the annual meeting. If other matters are properly brought
before the annual meeting, however, it is the intention of the persons named in
the accompanying proxy to vote the shares represented thereby on the matters in
accordance with their best judgment.
Annual Report
A copy of the Annual Report of the Company for fiscal year 2000 has been
mailed concurrently with this Proxy Statement to all stockholders entitled to
notice of and to vote at the Annual Meeting. The Annual Report is not
incorporated into this Proxy Statement and is not considered proxy solicitation
material.
Form 10-KSB/A
The Company has filed an Annual Report on Form 10-KSB/A with the
Securities and Exchange Commission. Stockholders may obtain a copy of this
report without charge by writing to Geoffrey Wagner, Secretary at the Company.
Deadline for Receipt of Stockholder Proposals
The Company currently intends to hold its 2001 Annual Meeting of
Stockholders in September 2001 and to mail proxy statements relating to such
meeting in August 2001. Proposals of stockholders of the Company that are
intended to be presented by such stockholders at the 2001 Annual Meeting of
Stockholders of the Company must be received by the Company no later than June
12, 2001, and must otherwise be in compliance with applicable laws and
regulations in order to be considered for inclusion in the proxy statement and
form of proxy relating to that meeting, including the following: (i) a brief
description of the matter and the reasons for conducting such business at the
annual meeting, (ii) the name and address of the stockholder, as they appear on
the books of the Company, (iii) the number of shares beneficially owned by the
stockholder, (iv) any material interest of the stockholder in the proposal, and
(v) any other information that is required to be provided by the stockholder
pursuant to Regulation 14A under the Exchange Act. Nominations of persons to
the Board of Directors must include, with respect to each nomination and the
nominating stockholder, (A) the name, age, business address and residence
address of such person, (B) the principal occupation or employment of such
person, (C) the class and number of shares of the Company which are
beneficially owned by such person, (D) a description of arrangements or
understandings between the stockholder and each nominee and other person or
persons (naming such person or persons) pursuant to which the nominations are
to be made by the stockholder, and (E) any other information relating to such
person that is required to be disclosed in solicitations of proxies for
elections of directors, or is otherwise required under the Exchange Act.
The attached proxy card grants discretionary authority to the proxies
named therein to vote on any matter raised by a stockholder at the meeting. The
Company intends to confer similar authority in the proxy to be solicited for
the 2001 Annual Meeting of Stockholders for any stockholder proposal as to
which the Company receives notification by August 27, 2001 of the stockholder's
intent to raise the matter at the 2001 Annual Meeting of Stockholders.
16
<PAGE>
Notwithstanding the foregoing, the stockholder must also provide notice as
required by the Exchange Act and the applicable regulations thereunder. The
chairman of the Annual Meeting may determine, if the facts warrant, that a
matter has not been properly brought before the meeting and, therefore, may not
be considered at the meeting.
THE BOARD OF DIRECTORS
Dated: October 10, 2000
17
<PAGE>
REVOCABLE PROXY
OMNIS TECHNOLOGY CORPORATION
THIS PROXY IS SOLICITED ON BEHALF OF
THE BOARD OF DIRECTORS OF OMNIS TECHNOLOGY CORPORATION
2000 ANNUAL MEETING OF STOCKHOLDERS
OCTOBER 23, 2000
The undersigned stockholder of Omnis Technology Corporation, a Delaware
corporation, hereby acknowledges receipt of the Notice of Annual Meeting of
Stockholders and Proxy Statement, each dated October 10, 2000, and hereby
appoints Bryce Burns and Geoffrey Wagner, proxies and attorneys-in-fact, with
full power to each of substitution, on behalf and in the name of the
undersigned, to represent the undersigned at the 2000 Annual Meeting of
Stockholders of Omnis Technology Corporation to be held on October 23, 2000, at
1:00 p.m. Pacific Time at the offices of Morrison & Foerster LLP, 425 Market
Street, 33rd Floor, San Francisco, California 94105, (415) 268-6465, and at any
adjournment(s) thereof and to vote all shares of voting stock of the Company
which the undersigned would be entitled to vote if then and there personally
present, on the matters set forth below:
1. ELECTION OF DIRECTORS:
Brian Sparks
Gwyneth Gibbs FOR: ___________ AGAINST: ___________
Bryce Burns FOR ALL EXCEPT: ___________
INSTRUCTIONS: To withhold authority to vote for any individual nominee, mark
"For All Except" and write such nominee's name in the space provided above.
2. AMENDMENT TO OMNIS FOR: ___________ AGAINST: ___________
1999 STOCK OPTION PLAN:
3. RATIFICATION OF FOR: _________ AGAINST: ____________
ACCOUNTANTS: ABSTAIN:______________
and, in their discretion, upon such other matter or matters which may properly
come before the meeting and any adjournment(s) thereof.
Detach above card, mark, sign, date and mail in postage paid envelope provided.
18
<PAGE>
OMNIS TECHNOLOGY CORPORATION
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS.
THIS PROXY WILL BE VOTED AS DIRECTED OR, IF NO CONTRARY DIRECTION IS
INDICATED, WILL BE VOTED FOR: (1) FOR THE ELECTION OF THE NOMINATED DIRECTORS,
(2) APPROVAL OF AN AMENDMENT TO THE OMNIS 1999 STOCK OPTION PLAN, (3) APPROVAL
OF RATIFICATION OF GRANT THORNTON LLP AS ACCOUNTANTS OF THE COMPANY AND AS SAID
PROXIES DEEM ADVISABLE ON SUCH OTHER MATTERS AS MAY COME BEFORE THE MEETING AND
ANY ADJOURNMENT(S) THEREOF.
Please be sure to sign and date this Proxy below.
Dated: _________________________________________, 2000
______________________________________________________
Stockholder sign above
______________________________________________________
Co-holder (if any) sign above
(This Proxy should be marked, dated, signed by the
stockholder(s) exactly as his or her or its name
appears hereon, and returned promptly in the enclosed
envelope. Persons signing in a fiduciary capacity
should so indicate.
If shares are held by joint tenants or as community
property, both should sign.)
PLEASE ACT PROMPTLY
MARK, SIGN, DATE AND MAIL YOUR PROXY CARD TODAY
19
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APPENDICES
Appendix A ...................................... Amended 1999 Stock Option Plan
<PAGE>
OMNIS TECHNOLOGY CORPORATION
AMENDED 1999 STOCK OPTION PLAN
1. Purpose. This Omnis Technology Corporation 1999 Stock Option Plan (the
"Plan") is established to create additional incentives for certain valued
employees, directors, consultants and advisors of Omnis Technology Corporation,
a Delaware corporation (the "Company") or any parent or subsidiary thereof and
to promote the financial success and progress of the Company and the Corporate
Group. It is intended that (i) options which qualify as incentive stock options
("Incentive Options") under Section 422 of the Internal Revenue Code of 1986 as
amended or superseded, and (ii) options which are nonincentive stock options
("Nonincentive Options") may be granted under this Plan.
2. Effective Date and Term of the Plan.
a. This Plan shall become effective on the date of its adoption by the
Board of Directors of the Company (the "Board"), provided the Plan is
approved by the shareholders of the Company within twelve months before or
after that date. If the Plan is not so approved by the shareholders of the
Company, all options granted under this Plan shall be rescinded and shall
be void.
b. This Plan shall terminate upon the earlier of (i) ten (10) years
from the date the Plan is adopted by the Board or approved by the
shareholders, whichever is earlier, or (ii) the date on which all shares
available for issuance under this Plan shall have been issued pursuant to
the exercise of options granted hereunder, or (iii) by action of the Board
pursuant to Section 14 hereof. All options outstanding on the date of
termination of this Plan shall continue in force and effect in accordance
with the provisions of the agreements evidencing such options, and shall
continue to include by reference all of the relevant provisions of this
Plan notwithstanding such termination.
3. Certain Definitions. Unless the context otherwise requires, the
following defined terms (and all other capitalized terms defined in this Plan)
shall govern the construction of this Plan, and any stock option agreements
entered into pursuant to this Plan:
a. "Code" means the Internal Revenue Code of 1986 as amended or
superseded.
b. "Common stock" shall mean the Common Stock of the Company, $0.10 par
value.
c. "Corporate Group" means the Company and any successor thereof, any
and all parent corporations of the Company, and any and all subsidiary
corporations of the Company as of the relevant date of determination. For
purposes of this Plan, "parent" or "parent corporation" and "subsidiary" or
"subsidiary corporation" shall have the same meanings as defined in
Sections 424(e) and 424(f) of the Code.
d. "Permanent and total disability" shall have the same meaning as
defined in Section 22(e)(3) of the Code.
e. "Exchange Act" means the Securities Exchange Act of 1934 as amended
or superseded.
f. Except as otherwise expressly provided herein, "fair market value"
means:
(i) If the common stock of the Company is then listed on a Public
Market (as hereinafter defined), then the "fair market value" of the
shares of such common stock of the Company shall be the closing price
of such stock on the principal exchange or securities market on which
such stock is then listed or admitted to trading on the last trading
day immediately prior to the relevant date, as reported by the Wall
Street Journal or such other source as the Board deems reliable. If
there are no reported sales of such stock of the Company on such
principal exchange or securities market on said date, then the closing
price for such stock on such exchange or market on the next preceding
trading day for which quotations do exist shall be determinative of
fair market value, as reported by the Wall Street Journal or such other
source as the Board deems reliable.
(ii) If the common stock of the Company is quoted on the NASDAQ
System (but not on the National Market System or Small Cap System
thereof) or is regularly quoted by a recognized securities dealer but
selling prices are not reported, then the "fair market value" of the
shares of such common stock of the Company shall be the mean of the
closing bid and asked prices for
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such stock on the last trading day immediately prior to the relevant
date, as reported by the Wall Street Journal or such other source as
the Board deems reliable; provided however that the Board may use other
good faith methods to determine "fair market value" of the common stock
in the event that the Board determines that such selling prices or bid
and asked prices are not a reliable indicator of fair market value due
to low or sporadic volume trading or comparable factors during the
relevant period.
(iii) In the absence of an established market for the Common Stock
of the Company, then the "fair market value" of the shares of such
common stock of the Company shall be as determined by the Board in good
faith as of the relevant date, or pursuant to such other or additional
standards as required by applicable law.
g. "For cause" means (i) conviction of a crime involving moral
turpitude or any felony; (ii) the repeated failure to perform or material
neglect or incompetence in the performance of the regular duties of the
Optionee as an employee of the Company or other member of the Corporate
Group; (iii) knowing participation in any fraud or other material act of
malfeasance related to the business of the Company or other member of the
Corporate Group; or (iv) the imparting, disclosure or use of any
confidential information in material violation of any then applicable
employment agreement or nondisclosure agreement to which the Company or
other member of the Corporate Group is a party; except as otherwise
provided by the terms of the relevant Option Agreement. Nothing in this
Plan is intended to change the nature of the at-will employment of an
Optionee with the Company or other member of the Corporate Group.
h. "Option" collectively means an Incentive Option or a Nonincentive
Option granted to an Optionee hereunder pursuant to an Option Agreement.
i. "Option Agreement" means the written agreement between the Company
and an Optionee granting an Option hereunder.
j. "Option Price" with respect to any particular Option means the
exercise price at which the Optionee may acquire each share of the Option
Shares under such Option.
k. "Option Shares" mean the shares of the common stock of the Company
issued or issuable by the Company pursuant to the exercise of an Option
granted hereunder; all stock or securities received in replacement of the
Option Shares in connection with a recapitalization, reorganization, merger
or other transaction subject to Section 5(b) hereof; all stock or other
securities received as stock dividends or as a result of any stock splits;
and all new, substituted or additional stock or other securities to which
an Optionee may be entitled by reason of the exercise of an Option or the
ownership of the Option Shares.
l. "Optionee" means the eligible person to whom an Option is granted
hereunder, and any permissible transferee thereof pursuant to Section 6(e)
of this Plan. Any permissible transferee shall be bound by all of the terms
and conditions and obligations of this Plan and the relevant Option
Agreement.
m. "Public Market" means a market where the common stock of the Company
is listed on a national securities exchange (as that term is used in the
Exchange Act) or a national securities market, including without limitation
the National Market System of the National Association of Securities
Dealers, Inc. Automated Quotation System ("NASDAQ") or the NASDAQ Small Cap
Market as then constituted.
n. "Ten Percent Shareholder" means a person who owns, either directly
or indirectly by virtue of the ownership attribution provisions set forth
in Section 424(d) of the Code, at the time such person is granted an
Option, stock possessing more than ten percent (10%) of the total combined
voting power or value of all classes of stock of the Company or of its
parent or subsidiary corporation or corporations.
4. Eligibility. The persons who shall be eligible to be granted Options
pursuant to this Plan shall be the employees, officers, directors, consultants
and/or advisors of the Company or any parent or subsidiary thereof, as the
Board shall select from time to time in its sole discretion.
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5. Shares Subject to Plan.
a. The stock issuable under this Plan shall be shares of the authorized
but unissued or reacquired common stock of the Company. The aggregate
number of shares of common stock which may be issued under this Plan shall
be Five Million (5,000,000) shares, subject to adjustment as provided in
Section 5(b) hereof. In the event that any outstanding Option for any
reason expires or is terminated or cancelled in whole or in part, the
Option Shares allocable to any unexercised portion of such Option shall be
available for subsequent grants hereunder.
b. In the event the Company shall change the outstanding shares of its
common stock into a different number or class of shares by means of any
merger, consolidation, recapitalization, reorganization, reclassification,
stock split, reverse stock split, stock dividend, combination, exchange or
other comparable change in the corporate structure of the Company effected
without receipt of consideration, then the Board shall make appropriate
adjustments to the number and/or class of Option Shares and the Option
Price per share of the stock subject to each outstanding and unexercised
Option and with regard to the maximum number and/or class of shares of
common stock of the Company issuable under this Plan, in order to prevent
the dilution of benefits provided under such Options and this Plan. For
these purposes (i) changes occurring on account of the issuance of shares
of stock by the Company at any time upon the exercise of any stock options,
rights or warrants or upon the conversion of any convertible securities or
debt or other issuance of stock by the Company in a private or public
offering for consideration shall not require any adjustment in the number
or class of shares or the Option Price, and (ii) in the case of Incentive
Options, any and all adjustments provided for hereunder shall fully comply
with Sections 422 and 424 of the Code.
c. Neither the grant of an Option nor any other provision hereof shall
in any way affect the right of the Company to adjust, reclassify,
restructure, reorganize or otherwise change its capital or business
structure or to merge, consolidate, dissolve, liquidate or sell or transfer
or otherwise dispose of all or any part of its stock, business or assets at
any time.
6. Grant of Options; Option Agreements. Each Option granted pursuant to
this Plan shall be authorized by the action of the Board and shall be evidenced
by an Option Agreement between the Company and the person to whom such Option
is granted, in the form and substance satisfactory to the Board from time to
time and consistent with and pursuant to this Plan. Without limiting the
foregoing, each Option Agreement shall be deemed to include and incorporate by
reference each and all of the following terms and conditions:
a. Grant Date. The date stated in the Option Agreement as the grant
date of the Option shall be the "Grant Date" of the Option for all purposes
hereof. Notwithstanding the foregoing, an Option shall not be effective and
legally enforceable hereunder until the completed execution and delivery of
the written Option Agreement by the Optionee and a duly authorized officer
of the Company.
b. Term of Option. The Board shall have the power to set the time or
times within which each Option shall be exercisable or the event or events
upon the occurrence of which all or a portion of each Option shall be
exercisable and the term of each Option; provided however that no Option
shall be exercisable after the expiration of ten (10) years from the date
such Option is granted; or in the case of a Ten Percent Shareholder, after
the expiration of five (5) years from the date such Option is granted.
c. Right to Exercise; Vesting. The right to exercise an Option shall
vest at the rate of at least twenty percent (20%) per year over five (5)
years from the Grant Date of the Option in all events, subject to
reasonable conditions such as the continued employment of the Optionee and
specifically subject to Section 6(h) of this Plan. Except as otherwise
expressly provided in the relevant Option Agreement and subject to the
expiration or earlier termination of the Option, the vesting period of the
Option shall be for a period of four (4) years as follows:
(i) The Optionee shall have no right to exercise any part of the
Option at any time prior to the expiration of the one (1) year from the
Grant Date of the Option;
(ii) The Option shall become exercisable with respect to Twenty-Five
Percent (25%) of the Option Shares upon the expiration of one (1) year
from the Grant Date of the Option; and
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(iii) The Option thereafter shall become exercisable with respect to
an additional Two and Eight Point Thirty Three Hundredths Percent
(2.0833%) of the Option Shares for each month following the expiration
of one (1) year from the Grant Date of the Option.
Exercisable installments may be exercised by the Optionee in whole or in part
and to the extent not exercised shall accumulate and be exercisable as
provided. The Company shall not be required to issue fractional shares at any
time; and any fractional shares remaining in an Option following any exercise
thereof shall be rounded down to the next nearest whole number of Shares.
d. Option Price. The Option Price for each Option shall be as
determined in the sole discretion of the Board from time to time; provided
however that:
(i) The Option Price for Incentive Options shall be not less than
100 percent of the fair market value of the Option Shares on the Grant
Date of the Option; except that the Option Price for Incentive Options
of a Ten Percent Shareholder shall not be less than 110 percent of the
fair market value of the Option Shares on the Grant Date of the Option.
(ii) The Option Price for Nonincentive Options shall be not less
than 85 percent of the fair market value of the Option Shares on the
Grant Date of the Option; except that the Option Price for Nonincentive
Options of a Ten Percent Shareholder shall not be less than 110 percent
of the fair market value of the Option Shares on the Grant Date of the
Option.
e. Non-Transferability. No Option shall be transferable or assignable
by the Optionee other than by will or the laws of descent and distribution,
and an Option may be exercised during the lifetime of the Optionee solely
by the Optionee; provided however that in the case of Nonincentive Options,
the Optionee may transfer all or part of a Nonincentive Option by
instrument to an inter vivos or testamentary trust in which such Option is
to be passed to beneficiaries upon the death of the Optionee, or by gift to
"immediate family" members as that term is defined in 17 C.F.R.
\s240.16a-1(e)(as amended or superseded), provided further that such Option
shall remain subject to all of the terms and conditions of this Plan and
the relevant Option Agreement, including but not limited to the Option
termination provisions hereof. Subject to the foregoing, all transfers or
assignments or attempted transfers or assignments of any Option or Option
Agreement shall be void ab initio.
f. Exercise of the Option. Except as otherwise provided in the relevant
Option Agreement, in order to exercise an Option with respect to all or any
part of the Option Shares for which an Option is then exercisable, Optionee
(or the executor, administrator, heir or devisee of Optionee after the
death of Optionee) must do the following:
(i) Provide the Secretary of the Company with written notice of such
exercise, specifying the number of Option Shares for which the Option
is being exercised;
(ii) Pay the Option Price for the Option Shares being purchased in
one or more of the following forms: (1) full payment in cash or check
of the Option Price in United States Dollars for the Option Shares
being purchased; (2) full payment in shares of common stock of the
Company having a fair market value on the Exercise Date equal to the
Option Price for the Option Shares being purchased, and held for such
period required for purposes of Section 16(b) of the Exchange Act to
the extent applicable; or (3) full payment by a combination of such
shares of common stock of the Company valued at fair market value on
the Exercise Date and cash or check payable to the order of the
Company, equal in the aggregate to the Option Price for the Option
Shares being purchased; and
(iii) Furnish to the Company appropriate documentation that the
person or persons exercising the Option, if other than Optionee, have
the right to exercise such Option. For these purposes, the "Exercise
Date" of the Option shall be the date on which the Secretary of the
Company receives written notice of the exercise of such Option,
together with full payment of the Option Price for the Option Shares
being purchased. In the event the Board determines in its sole
discretion that the shares of common stock of the Company cannot be
reasonably valued at fair market value as of the Exercise Date, then
full payment of the Option Price for the Option
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Shares shall be made only in cash or check payable to the order of the
Company. The certificate or certificates for the Option Shares shall be
registered in the name of Optionee, or if applicable, in the name of
the estate, heirs or devisees of Optionee.
g. Rule 16b-3. Options granted to individuals subject to Section 16 of
the Exchange Act must comply with the applicable provisions of SEC Rule
16b-3 (as amended or superseded) and shall contain such additional
conditions or restrictions as may be required thereunder to qualify for the
maximum exemption from Section 16 of the Exchange Act with respect to Plan
transactions.
h. Tax Withholding. At the time an Option is exercised in whole or in
part, or at any time thereafter as requested by the Company, the Optionee
shall authorize payroll withholding and otherwise shall agree to make
adequate payments to the Company for all federal, state and other
jurisdiction tax withholding obligations of the Company or any parent or
subsidiary thereof which may arise in connection with the Option, if any,
including without limitation obligations arising upon (i) the grant of such
Option, (ii) the exercise of such Option in whole or in part, (iii) the
transfer of any Option Shares or other property or consideration of any
kind in connection with the exercise of such Option, (iv) the operation of
any law or regulations providing for the imputation of interest or any
other income or payment, or (v) the lapsing of any restriction with respect
to any Option Shares.
i. Earlier Termination of Option Term. An Option shall terminate prior
to the expiration date of the Option as follows:
(i) Termination For Cause. If the Company terminates the employment
of an Optionee for cause, then the Option shall terminate and cease to
be exercisable upon the earlier of (1) the termination of the
employment of the Optionee or (2) the expiration date of the Option. No
additional right to exercise the Option with respect to any Option
Shares shall vest from and after the date the employment of the
Optionee is terminated.
(ii) Voluntary Termination. If the Optionee voluntarily terminates
his or her employment with the Company, then the Option shall terminate
and cease to be exercisable upon the earlier of (1) the expiration of
thirty (30) days from the date the employment of the Optionee is
terminated or (2) the expiration date of the Option. No additional
right to exercise the Option with respect to any Option Shares shall
vest from and after the date the employment of the Optionee is
terminated.
(iii) Termination Without Cause. If the Company terminates the
employment of the Optionee without cause (other than in the case of
death or permanent and total disability), then the Option shall
terminate and cease to be exercisable upon the earlier of (1) the
expiration of sixty (60) days from the date the employment of the
Optionee is terminated or (2) the expiration date of the Option. No
additional right to exercise the Option with respect to any Option
Shares shall vest from and after the date the employment of the
Optionee is terminated.
(iv) Removal of Director For Cause. If an Optionee is removed as a
director for cause as defined by applicable law, then any Option
granted to the Optionee in his or her capacity as a director shall
terminate and cease to be exercisable upon the earlier of (1) the
termination of the directorship of the Optionee or (2) the expiration
date of such Option. No additional right to exercise such Option with
respect to any Option Shares shall vest from and after the date the
directorship of the Optionee is terminated.
(v) Death of Optionee. In the event of the death of Optionee during
the term of the Option, then the executors or administrators of the
estate of the Optionee or the heirs or devisees of the Optionee (as the
case may be) shall have the right to exercise the Option to the extent
the Optionee was entitled to do so at the time of his or her death;
provided however that the Option shall terminate and cease to be
exercisable upon the earlier of (1) the expiration of one (1) year from
the date of the death of the Optionee or (2) the expiration date of the
Option. No additional right to exercise the Option with respect to any
Option Shares shall vest from and after the date of the death of the
Optionee.
(vi) Disability of Optionee. In the event of the permanent and total
disability of Optionee during the term of the Option, then Optionee
shall have the right to exercise the Option to the
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extent Optionee was entitled to do so at the time of the termination of
his or her employment or directorship or engagement with the Company by
reason of such disability; provided however that the Option shall
terminate and cease to be exercisable upon the earlier of (1) the
expiration of one (1) year from the date of such termination of
employment or directorship or engagement or (2) the expiration date of
the Option. No additional right to exercise the Option with respect to
any Option Shares shall vest from and after the date of the termination
of the employment or directorship or engagement of the Optionee.
(vii) Employment by Corporate Group. For purposes of this Section,
if during the term of the Option the Optionee transfers as an employee
from the Company to another member of the Corporate Group, the
employment of the Optionee shall not be deemed to have terminated or
ceased hereunder and all references to the Company herein shall be
deemed to include such member of the Corporate Group. For purposes
hereof the employment of the Optionee shall be deemed to have
terminated either upon actual termination of employment or upon the
employer of Optionee ceasing to be a member of the Corporate Group,
unless said employer or its successor assumes the Option pursuant to
the terms hereof.
j. Common Stock Voting Rights. This Plan and any Option Agreement
hereunder shall be in full compliance with Section 260.140.1 of the Rules
of the California Commissioner of Corporations (as amended or superseded)
regarding the voting rights of common stock.
k. Other Provisions. An Option Agreement may contain such other terms,
provisions and conditions, including but not limited to provisions
accelerating the right to exercise an Option, special forfeiture
conditions, rights of repurchase, rights of first refusal and restrictions
on transfer of Option Shares issued hereunder, not inconsistent with the
provisions of this Plan or applicable law, as may be determined by the
Board in its sole discretion.
7. Restrictions on Grant or Stock Issuance.
a. The grant of Options and the issuance of Option Shares shall be
conditioned upon and subject to compliance with all of the applicable
requirements of federal and state laws with respect to such securities on
the relevant dates of determination; and to the entering into of such
covenants, representations and warranties by the Optionee as required under
applicable laws in the judgment of the Company or its counsel in its sole
discretion with respect to the grant of the Option and the issuance of the
Option Shares thereunder. Without limiting the foregoing, the Company has
no obligation to file a registration statement under the Securities Act of
1933 or under any similar act or law for the registration or qualification
of any Option or any of the Option Shares or to otherwise assist any
Optionee in complying with any exemption from registration.
b. The certificate or certificates representing the Option Shares
acquired by exercise of the Option shall bear such legends as determined by
the Company in its sole and absolute discretion, including without
limitation any applicable federal or state securities law or corporate law
restrictions and legends. In order to ensure compliance with the
restrictions set forth in this Plan and the Option Agreement, the Company
also may issue appropriate stop-transfer instructions to its transfer
agent, if any, and if the Company transfers its own securities, the Company
may make appropriate notations to the same effect in its own records.
8. No Rights as a Shareholder. No person shall have any rights as a
shareholder with respect to any of the Option Shares subject to an Option until
the date of the issuance of a stock certificate(s) for the Option Shares for
which the Option has been exercised. No adjustments shall be made for dividends
or distributions or other rights for which the record date is prior to the date
such stock certificate(s) are issued, except as provided in Section 5(b) of
this Plan.
9. No Rights in Other Capacities. Nothing in this Plan or in any Option
Agreement shall confer upon any Optionee any right to continue as an employee
or director or consultant or advisor of the Company (or any other member of the
Corporate Group) or interfere in any manner with any right of the Company (or
any other member of the Corporate Group or other relevant entity) to terminate
the employment or directorship or engagement of an Optionee at any time. No
Optionee shall have any
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authority to act on behalf of the Company in any capacity with respect to his
or her own participation in this Plan or with respect to his or her own Option
Agreement or Option granted hereunder.
10. Use of Proceeds. The proceeds received by the Company from the payment
of the Option Price pursuant to exercise of an Option shall be used for such
corporate purposes as determined by the Board in its discretion.
11. Lock-Up Restrictions. In connection with any underwritten public
offering of stock or other securities made by the Company pursuant to an
effective registration statement filed under applicable federal securities
acts, the Optionee shall fully comply with and cooperate with the Company and
any managing underwriter in connection with any stock "lock-up" or "standstill"
agreements or similar restrictions on the offer or sale or contract to sell or
other transfer or assignment or pledge or loan or other encumbrance of the
shares of the common stock of the Company (including without limitation any of
the Option Shares) generally applicable to similarly situated shareholders or
optionholders of the Company.
12. Mandatory Notice of Disposition. The Optionee shall transfer or
dispose of any of the Option Shares only in compliance with the provisions of
this Plan and the Option Agreement. Without limiting the other provisions of
this Plan or the Option Agreement, in the event the Optionee disposes of any of
the Option Shares within two (2) years of the Grant Date of the Option or
within one (1) year after the transfer of the Option Shares to the Optionee in
connection with an exercise of the Option, whether such disposition is made by
sale, exchange, gift or otherwise, then the Optionee shall notify the Chief
Financial Officer of the Company of such disposition in writing within thirty
(30) days from the date of such disposition. Said written notice shall state
the date of such disposition, and the type and amount of the consideration
received for such Option Share or Option Shares by the Optionee in connection
therewith. In the event of any such disposition, the Company shall have the
right to withhold from the Optionee or to require the Optionee to immediately
pay to the Company the aggregate amount of taxes, if any, which the Company is
required to withhold under federal or state or other applicable law as a result
of the granting or exercise of the subject Option or the disposition of the
subject Option Shares.
13. Modification, Extension and Renewal of Options. Subject to the terms
and conditions and within the limitations of this Plan, the Board may modify,
extend or renew outstanding Options granted under this Plan, or accept the
surrender of outstanding Options (to the extent not theretofore exercised) and
authorize the granting of new Options in substitution therefor (to the extent
not theretofore exercised). Notwithstanding the foregoing, no modification of
any Option shall, without the consent of the Optionee, alter or impair any
rights or obligations under any Option theretofore granted under this Plan.
14. Termination or Amendment of Plan.
a. The Board may at any time terminate or amend this Plan prior to the
expiration of this Plan, provided however that without the approval of the
shareholders of the Company there shall be: (i) no increase in the total
number of shares of stock which may be issued under this Plan (except by
operation of the provisions of Section 5(b) hereof), and (ii) no change in
the classes of persons eligible to be granted Options.
b. No amendment of this Plan may adversely affect any then outstanding
Option or any unexercised portion thereof without the consent of the
Optionee; provided however that subject to Section 14(a) hereof the Board
expressly reserves the right to amend the terms and provisions of this Plan
and of any outstanding Options under this Plan to the extent necessary to
qualify such Options for such favorable federal income tax treatment
(including deferral of taxation upon exercise) as may be afforded employee
stock options under amendments to the Code or other statutes or regulations
which become effective after the effective date of this Plan.
15. Financial Statements. Subsequent to the Effective Date of the Plan,
the Optionees shall receive financial statements from the Company on at least
an annual basis to the extent required by the then applicable Rules of the
Commissioner of Corporations for the State of California or as otherwise
required by law.
16. Notices. All notices, requests, demands and other communications
required or permitted to be given pursuant to this Plan or any Option Agreement
(collectively "notices") shall be in writing and shall
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be delivered (i) by personal delivery, (ii) by nationally recognized overnight
air courier service or (iii) by deposit in the United States Mail, postage
prepaid, registered or certified mail, return receipt requested. A notice shall
be deemed to have been given on the date delivered, if delivered personally or
by overnight air courier service; or five (5) days after mailing if mailed. All
notices shall be addressed if to the Company at its principal place of business
in the State of California, United States of America, to the attention of the
Secretary or Chief Financial Officer of the Company; and if to the Optionee or
his or her representative at the last address of Optionee shown on the records
of the Company. Either party may by written notice to the other party specify a
different address to which notices shall be given, by sending notice thereof to
the other party in the foregoing manner.
17. Administration. This Plan shall be administered by the Board or by a
duly appointed committee of the Board having such powers as shall be specified
by the Board; and further subject to Section 16(b) of the Exchange Act and SEC
Rule 16b-3 (as amended or superseded) with respect to any Option granted to an
individual subject to such rules. Any references in this Plan to the Board
shall also be deemed to refer to such committee of the Board if appointed for
such purposes with the relevant powers. The Board may also at any time
terminate the functions of such committee and reassume all powers and authority
previously delegated to the committee. The Board is authorized to establish
such rules and regulations as it may deem appropriate for the proper
administration of this Plan and to make such determinations under, and issue
such interpretations of, this Plan and any Option Agreement or Option granted
hereunder as it may deem necessary or advisable. All questions of
interpretation of this Plan or any Option Agreement or Option granted hereunder
shall be determined by the Board and shall be final and binding upon all
persons having an interest in this Plan or any Option Agreement or Option
granted hereunder. No member of the Board shall vote on any matter concerning
his or her own participation in this Plan. No member of the Board shall be
liable for any action or interpretation made in good faith hereunder.
18. General Provisions.
a. This Plan constitutes the entire Omnis Technology Corporation 1999
Stock Option Plan, subject to termination or amendment as herein provided.
In the event of any conflict between the terms or provisions of this Plan
and any Option Agreement for any Option granted hereunder, the terms and
provisions of this Plan shall control.
b. This Plan shall be construed in accordance with and governed by the
laws of the State of California without reference to the principles of
conflicts of law.
c. Whenever possible, each provision of this Plan shall be interpreted
in such manner as to be effective and valid under applicable law. In the
event that any provision of this Plan shall be held by the final judgment
of a court of competent jurisdiction to be invalid or unlawful or
unenforceable, then the remaining provisions of this Plan shall remain in
full force and effect and shall be construed to give the fullest effect to
the purpose of this Plan and the intended qualification of this Plan
pursuant to Section 422 of the Code and pursuant to Section 25102(o) of the
California Corporations Code and the respective regulations and rules
thereunder (as amended or superseded).
d. When the context requires, the plural shall include the singular and
the singular the plural and any gender shall include any other gender.
Section headings are for convenience only and are not part of this Plan.
19. Copies of Plan. A complete copy of this Plan as then in effect shall
be delivered to each Optionee at or before the time such person executes and
delivers the relevant Option Agreement.
Dated: April 13, 1999
DATE OF ADOPTION OF THIS PLAN BY THE BOARD OF DIRECTORS
OF THE COMPANY: APRIL 13, 1999
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