EXHIBIT NO. 4.01
1997 NON-QUALIFIED STOCK OPTION PLAN
Caldera Corporation, a Florida corporation, (the "Company"), hereby
adopts this 1997 Non-Qualified Stock Option Plan (the "Plan") this 30th day
of June 1997, under which options to acquire stock of the Company may be
granted from time to time to employees and consultants of the Company or
its subsidiaries. In addition, at the discretion of the board of
directors, options to acquire stock of the Company may from time to time be
granted under this Plan to other individuals who contribute to the success
of the Company or its subsidiaries and are not employees of the Company,
all on the terms and conditions set forth herein.
1. PURPOSE OF THE PLAN. The Plan is intended to aid the Company in
maintaining and developing a management team, attracting qualified officers
and employees capable of assisting in the future success of the Company,
and rewarding those individuals who have contributed to the success of the
Company. It is designed to aid the Company in retaining the services of
executives and employees and in attracting new personnel when needed for
future operations and growth and to provide such personnel with an
incentive to remain employees of the Company, to use their best efforts to
promote the success of the Company's business, and to provide them with an
opportunity to obtain or increase a proprietary interest in the Company.
It is also designed to permit the Company to reward those individuals who
are not employees of the Company but who are perceived by management as
having contributed to the success of the Company or who are important to
the continued business and operations of the Company. The above aims will
be effectuated through the granting of options ("Options") to purchase
shares of common stock of the Company, par value $.0025 per share (the
"Stock"), subject to the terms and conditions of this Plan.
2. EFFECTIVE DATE. The Plan shall become effective immediately on
adoption by the board of directors of the Company (the "Board").
3. ADMINISTRATION OF THE PLAN. Administration of the Plan shall be
by the Board. Subject to compliance with applicable provisions of the
governing law, the Board may delegate administration of the Plan or
specific administrative duties with respect to the Plan, on such terms and
to such committees of the Board as it deems proper; provided however, that
if less than the entire Board is administering the Plan or grants under the
Plan, action may be taken only by a committee of two or more "disinterested
directors" as that term is defined in Rule 16b-3, and the regulations and
releases thereunder all as promulgated by the Securities and Exchange
Commission under authority of the Exchange Act of 1934, as amended. Any
option approved by the Board shall be approved by a majority vote of those
members of the Board in attendance at a meeting at which a quorum is
present. Any option approved by a committee designated by the Board shall
be approved as specified by the Board at the time of delegation. The
interpretation and construction of the terms of the Plan by the Board or a
duly authorized committee shall be final and binding on all participants in
the Plan absent a showing of demonstrable error. No member of the Board or
duly authorized committee shall be liable for any action taken or
determination made in good faith with respect to the Plan.
4. SHARES OF STOCK SUBJECT TO THE PLAN. A total of five hundred
thousand (500,000) shares of Stock may be subject to, or issued pursuant
to, Options granted under the terms of this Plan. Any shares subject to an
Option under the Plan, which Option for any reason expires or is forfeited,
terminated, or surrendered unexercised as to such shares, shall be added
back to the total number of shares reserved for issuance under the terms of
this Plan, and if any right to acquire Stock granted under the Plan is
exercised by the delivery of shares of Stock or the relinquishment of
rights to shares of Stock, only the net shares of Stock issued (the shares
of Stock issued less the shares of Stock surrendered) shall count against
the total number of shares reserved for issuance under the terms of this
Plan.
5. RESERVATION OF STOCK ON GRANTING OF OPTION. At the time of
granting any Option under the terms of this Plan, there will be reserved
for issuance on the exercise of the Option the number of shares of Stock of
the Company subject to such Option. The Company may reserve either
authorized but unissued shares or issued shares that have been reacquired
by the Company.
6. ELIGIBILITY. Options under the Plan may be granted to employees,
including officers, and directors of the Company or its subsidiaries, as
may be existing from time to time, and to other individuals who are not
employees of the Company, but performed bona fide services to the Company,
as may be deemed in the best interest of the Company by the Board or a duly
authorized committee. Such Options shall be in the amounts, and shall have
the rights and be subject to the restrictions, as may be determined by the
Board or a duly authorized committee, all as may be within the general
provisions of this Plan.
7. TERM OF OPTIONS AND CERTAIN LIMITATIONS ON RIGHT TO EXERCISE.
(a) Each Option shall have the term established by the Board or
duly authorized committee at the time the Option is granted but in no event
may an Option have a term in excess of five (5) years.
(b) The term of the Option, once it is granted, may be reduced
only as provided for in this Plan and under the written provisions of the
Option.
(c) Unless otherwise specifically provided by the written
provisions of the Option, no holder or his or her legal representative,
legatee, or distributee will be, or shall be deemed to be, a holder of any
shares subject to an Option unless and until the holder exercises his or
her right to acquire all or a portion of the Stock subject to the Option
and delivers the required consideration to the Company in accordance with
the terms of this Plan and then only to the extent of the number of shares
of Stock acquired. Except as specifically provided in this Plan or as
otherwise specifically provided by the written provisions of the Option, no
adjustment to the exercise price or the number of shares of Stock subject
to the Option shall be made for dividends or other rights for which the
record date is prior to the date the Stock subject to the Option is
acquired by the holder.
(d) Options under the Plan shall vest and become exercisable at
such time or times and on such terms as the Board or a duly authorized
committee may determine at the time of the grant of the Option.
(e) Options granted under the Plan shall contain such other
provisions, including, without limitation, further restrictions on the
vesting and exercise of the Option, as the Board or a duly authorized
committee shall deem advisable.
(f) In no event may an Option be exercised after the expiration
of its term.
8. EXERCISE PRICE. The exercise price of each Option issued under
the Plan shall be determined by the Board or a duly authorized committee on
the date of grant.
9. PAYMENT OF EXERCISE PRICE. The exercise of any Option shall be
contingent on receipt by the Company of cash, certified bank check to its
order, or other consideration acceptable to the Company; provided, that at
the discretion of the Board or a duly authorized committee, the written
provisions of the Option may provide that payment can be made in whole or
in part in shares of Stock of the Company, which Stock shall be valued at
its then fair market value as determined by the Board or a duly authorized
committee on the date of exercise, or by the surrender or cancellation of
other rights to Stock of the Company. Any consideration approved by the
Board or a duly authorized committee, that calls for the payment of the
exercise price over a period of more than one year shall provide for
interest, which shall not be included as part of the exercise price, that
is equal to or exceeds the imputed interest provided for in section 483 of
the Code or any amendment or successor section of like tenor.
10. WITHHOLDING. If the grant or exercise of an Option pursuant to
this Plan is subject to withholding or other trust fund payment
requirements of the Code or applicable state or local laws, such
requirements may, at the discretion of the Board or a duly authorized
committee and to the extent permitted by the terms of the Option and the
then governing provisions of the Code and the Exchange Act, be met (i) by
the holder of the Option either delivering shares of Stock or canceling
Options or other rights to acquire Stock with a fair market value equal to
such requirements; (ii) by the Company withholding shares of Stock subject
to the Option with a fair market value equal to such requirements; or (iii)
by the Company making such withholding or other trust fund payment and the
Option holder reimbursing the Company such amount paid within 10 days after
written demand therefor from the Company.
11. DILUTION OR OTHER ADJUSTMENT. In the event that the number of
shares of Stock of the Company from time to time issued and outstanding is
increased pursuant to a stock split or a stock dividend, the number of
shares of Stock then covered by each outstanding Option granted hereunder
shall be increased proportionately, with no increase in the total purchase
price of the shares then so covered, and the number of shares of Stock
subject to the Plan shall be increased by the same proportion. In the
event that the number of shares of Stock of the Company from time to time
issued and outstanding is reduced by a combination or consolidation of
shares, the number of shares of Stock then covered by each outstanding
Option granted hereunder shall be reduced proportionately, with no
reduction in the total purchase price of the shares then so covered, and
the number of shares of Stock subject to the Plan shall be reduced by the
same proportion. In the event that the Company should transfer assets to
another corporation and distribute the stock of such other corporation
without the surrender of Stock of the Company, and if such distribution is
not taxable as a dividend and no gain or loss is recognized by reason of
section 355 of the Code or any amendment or successor statute of like
tenor, then the total purchase price of the Stock then covered by each
outstanding Option shall be reduced by an amount that bears the same ratio
to the total purchase price then in effect as the market value of the stock
distributed in respect of a share of the Stock of the Company, immediately
following the distribution, bears to the aggregate of the market value at
such time of a share of the Stock of the Company plus the stock distributed
in respect thereof. In the event that the Company distributes the stock of
a subsidiary to its shareholders, makes a distribution of a major portion
of its assets, or otherwise distributes significant portion of the value of
its issued and outstanding Stock to its shareholders, the number of shares
then subject to each outstanding Option and the Plan, or the exercise price
of each outstanding Option, may be adjusted in the reasonable discretion of
the Board or a duly authorized committee. All such adjustments shall be
made by the Board or duly authorized committee, whose determination upon
the same, absent demonstrable error, shall be final and binding on all
participants under the Plan. No fractional shares shall be issued, and any
fractional shares resulting from the computations pursuant to this section
shall be eliminated from the respective Option. No adjustment shall be
made for cash dividends, for the issuance of additional shares of Stock for
consideration approved by the Board, or for the issuance to stockholders of
rights to subscribe for additional Stock or other securities.
12. OPTIONS TO FOREIGN NATIONALS. The Board or a duly authorized
committee may, in order to fulfill the purposes of this Plan and without
amending the Plan, grant Options to foreign nationals or individuals
residing in foreign countries that contain provisions, restrictions, and
limitations different from those set forth in this Plan and the Options
made to United States residents in order to recognize differences among the
countries in law, tax policy, and custom. Such grants shall be made in an
attempt to provide such individuals with essentially the same benefits as
contemplated by a grant to United States residents under the terms of this
Plan.
13. ASSIGNMENT. No Option granted under this Plan shall be
transferable other than by will or the laws of descent and distribution or
pursuant to a qualified domestic relations order as defined in the Code.
Except as permitted by the foregoing, each Option granted under the Plan
and the rights and privileges thereby conferred shall not be transferred,
assigned, pledged, or hypothecated in any way (whether by operation of law
or otherwise), and shall not be subject to execution, attachment, or
similar process. On any attempt to transfer, assign, pledge, hypothecate,
or otherwise dispose of the Option, or of any right or privilege conferred
thereby, contrary to the provisions thereof, or on the levy of any
attachment or similar process on such rights and privileges, the Option and
such rights and privileges shall immediately become null and void.
14. EFFECT OF TERMINATION OF EMPLOYMENT. In the event that any
holder is terminated or resigns from his or her position with the Company
or a subsidiary within six months of the grant of an award, any unexercised
portion of such Option shall immediately become null and void and such
holder shall have no further rights thereunder. In the event that any
officer or employee of the Company or a subsidiary is terminated at any
time for, in the determination of the Board or a duly authorized committee,
gross negligence in the performance of his or her duties, substantial
failure to meet written standards established by the Company for the
performance of his or her duties, criminal misconduct, or willful or gross
misconduct in the performance of his or her duties, the Board or a duly
authorized committee may cancel any and all rights such individual may have
in the unexercised portion of any Option held at the time of termination.
The Board or a duly authorized committee may, at the time of the grant of
the Option, establish any other restrictions on the exercise of such Option
subsequent to the termination or resignation of any individual that it
deems appropriate. The foregoing paragraph shall not apply to consultants
who are issued options.
15. LISTING AND REGISTRATION OF SHARES. Each Option shall be subject
to the requirement that if at any time the Board shall determine, in its
sole discretion, that it is necessary or desirable to list, register, or
qualify the shares covered thereby on any securities exchange or under any
state or federal law, or obtain the consent or approval of any governmental
agency or regulatory body as a condition of, or in connection with, the
granting of such Option or the issuance or purchase of shares thereunder,
such Option may not be exercised in whole or in part unless and until such
listing, registration, consent, or approval shall have been effected or
obtained free of any conditions not acceptable to the Board.
16. EXPIRATION AND TERMINATION OF THE PLAN. The Plan may be
abandoned or terminated at any time by the Board or a duly authorized
committee except with respect to any Options then outstanding under the
Plan. The Plan shall otherwise terminate on the earlier of the date that
is: (i) ten years after the date the Plan is adopted by the Board; or (ii)
ten years after the date the Plan is approved by the shareholders of the
Company.
17. FORM OF OPTIONS. Options granted under the Plan shall be
represented by a written agreement which shall be executed by the Company
and the holder and which shall contain such terms and conditions as may be
determined by the Board or a duly authorized committee and permitted under
the terms of this Plan.
18. NO RIGHT OF EMPLOYMENT. Nothing contained in this Plan or any
Option awarded pursuant to this Plan shall be construed as conferring on a
director, officer, or employee any right to continue or remain as a
director, officer, or employee of the Company or its subsidiaries.
19. AMENDMENT OF THE PLAN. This Plan may not be amended more than
once during any six month period, other than to comport with changes in the
Code or the Employee Retirement Income Security Act or the rules and
regulations promulgated thereunder. Subject to the foregoing and the
limitations, the Board or a duly authorized committee may modify and amend
the Plan in any respect.
Caldera Corporation
By: /s/ Richard R. Cook, President
ATTEST:
The undersigned hereby attests to this Caldera Corporation 1997
Non-Qualified Stock Option Plan.
Caldera Corporation
By: /s/ Donald S. Thayer, Secretary
AMENDMENT NO. 1 TO THE 1997 NON-QUALIFIED STOCK OPTION PLAN
Section 4 of the 1997 Non-Qualified Stock Option Plan of Caldera
Corporation, a Florida Corporation, shall be and hereby is amended as
follows:
4. SHARES OF STOCK SUBJECT TO THE PLAN. A total of four million
(4,000,000) shares of Stock may be subject to, or issued pursuant to,
Options granted under the terms of this Plan. Any shares subject to an
Option under the Plan, which Option for any reason expires or is forfeited,
terminated, or surrendered unexercised as to such shares, shall be added
back to the total number of shares reserved for issuance under the terms of
this Plan, and if any right to acquire Stock granted under the Plan is
exercised by the delivery of shares of Stock or the relinquishment of
rights to shares of Stock, only the net shares of Stock issued (the shares
of Stock issued less the shares of Stock surrendered) shall count against
the total number of shares reserved for issuance under the terms of this
Plan.
The undersigned hereby attests to this Amendment No. 1 to the Caldera
Corporation 1997 Non-Qualified Stock Option Plan this 4th day of January
1999.
Caldera Corporation
By: /s/ Richard A. Ford, Secretary