THE SECURITY REPRESENTED BY THIS CERTIFICATE HAS BEEN ACQUIRED FOR INVESTMENT
AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF,
NO SUCH SALE OR DISPOSITION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY
THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND APPLICABLE STATE SECURITIES LAWS.
NON-QUALIFIED STOCK OPTION AGREEMENT
VIASOFT, INC.
Viasoft, Inc., a Delaware corporation (the "Company"), hereby grants to
________________________ (the "Optionee") an Option to purchase a total of 6,000
shares of Common Stock of the Company, at the price specified herein.
I. NATURE OF THE OPTION. This Option is a Non-Qualified Stock Option and
is not intended to qualify as an Incentive Stock Option as defined in
Section 422 of the Internal Revenue Code.
II. EXERCISE PRICE. The exercise price is 6.75 for each share of Common
Stock.
III. EXERCISE OF OPTION. This Option shall be exercisable during its term as
follows:
A. TERM OF OPTION. Notwithstanding any other provision to the
contrary, this Option may not be exercised more than five (5)
years from the date of grant of this Option, shall expire
automatically at the close of business of the Company on the
fifth anniversary of such date of grant and may be exercised
during such term only in accordance with the terms of this
Option.
B. VESTING. Subject to the terms and conditions of this
Agreement, this Option shall vest in three (3) equal annual
installments commencing on the date twelve months after the
Date of Grant of the Option.
C. TERMINATION. Notwithstanding any other provision of this
Agreement to the contrary, this Option shall be subject to the
following provisions:
(1) In the event the Optionee ceases to be a member of
the Board for any reason other than death or
disability, any then unexercised Options granted to
Optionee, to the extent not then exercisable pursuant
to Section III(B) above, shall be immediately
terminated and become void, and any Options which are
then exercisable but have not been exercised at the
time the Optionee ceases to be a member of the Board
may be exercised, but only to the extent they are
then exercisable, by the Optionee within a period of
three months following the time the Optionee so
ceases to be a member of the Board.
(2) In the event the Optionee ceases to be a member of
the Board by reason of disability or death, any then
unexercised Options granted to Optionee, to the
extent not then exercisable pursuant to Section
III(B) above, shall be immediately terminated and
become void, and any Options which are then
exercisable but have not been exercised at the time
the Optionee ceases to be a member of the Board may
be exercised, but only to the extent they are then
exercisable, by the Optionee (or by the Optionee's
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personal representative, heir or legatee, in the
event of death) during the period ending on the
earlier of (i) six (6) months from the date the
Optionee so ceases to be a member of the Board or
(ii) the expiration date of the Option.
(3) This Option shall terminate to the extent not
exercised in accordance with (1) and (2) of this
Section III(D), if applicable.
D. NO FRACTIONAL SHARES. This Option may not be exercised for a
fraction of a share.
E. METHOD OF EXERCISE. This Option shall be exercisable by
written notice which shall state the election to exercise the
Option and the number of shares in respect of which the Option
is being exercised. Such written notice shall be made together
with payment of the full exercise price in the manner provided
herein and in accordance with the terms hereof, shall be
signed by Optionee and shall be delivered in person or by
certified mail to the Secretary of the Company. No shares will
be issued pursuant to the exercise of any Option unless such
issuance and such exercise shall comply with all relevant
provisions of law and the requirements of any stock market or
exchange upon which the shares may then be traded or listed.
IV. OPTIONEE'S REPRESENTATIONS. By receipt of this Option, by its
execution, and by its exercise in whole or in part, Optionee represents
to the Company that:
(i) Optionee understands that both this Option and any
shares purchased upon its exercise are securities,
the issuance by the Company of which requires
compliance with federal and state securities laws;
and that these securities are made available to
Optionee only on the condition the Optionee makes the
representations contained in this Section IV to the
Company;
(ii) Optionee has made a reasonable investigation of the
affairs of the Company sufficient to be well informed
as to the rights and value of these securities;
(iii) Optionee understands that the securities have not
been registered under the Securities Act of 1933, as
amended (the "Act"), or the securities laws of any
state; that the securities have not been registered
under the Act in reliance upon a specific exemption
contained in the Act which depends upon Optionee's
bona fide investment intention in acquiring these
securities; that Optionee's intention is to hold
these securities for Optionee's own benefit for an
indefinite period; that Optionee has no present
intention of selling or transferring any part thereof
(recognizing that the Option is not transferable
except as provided for in this Agreement) and that
there may be certain restrictions on transfer of the
shares subject to the Option;
(iv) Optionee understands that Optionee has no rights to
require that the securities be registered under the
Act or applicable state securities laws; and
(v) Optionee understands that the certificate
representing the shares will bear a legend
prohibiting their transfer in the absence of their
registration or the opinion of counsel for the
Company that registration is not required.
V. METHOD OF PAYMENT. Payment of the exercise price shall be made (i) by
cash or by bank-certified, cashier's or personal check, (ii) by
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delivery to the Company of shares of Common Stock having a fair market
value equal to the option exercise price at the time of such exercise,
(iii) by delivery of instructions to the Company to withhold from the
option shares that would otherwise be issued on the exercise that
number of option shares having a fair market value equal to the option
exercise price at the time of such exercise, (iv) or by some
combination of the above; provided, however, that the purchase price
and/or withholding tax may not be paid, in whole or in part, by the
delivery of shares of Common Stock more frequently than once every six
months.
VI. RESTRICTIONS ON EXERCISE. This Option may not be exercised if the
issuance of such shares upon such exercise or the method of payment of
consideration for such shares would constitute a violation of any
applicable federal or state securities or other law or regulation. As a
condition to the exercise of this Option, the Company may require
Optionee to make any representation and warranty to the Company as may
be required by any applicable law or regulation.
VII. TRANSFERABILITY OF OPTION. This Option may be transferred only in
accordance with the terms of this Agreement. This Option may be
transferred by will or by the laws of descent and distribution. In
addition, this Option may be transferred by Optionee to a Permitted
Transferee. It shall be a condition precedent to any transfer permitted
under the preceding sentence that the Permitted Transferee execute and
deliver to the Company an agreement acceptable to the Company
acknowledging that this Option remains subject to all provisions of
this Agreement, including without limitation the vesting and
termination provisions of Section 3, which shall continue to be applied
as if Optionee had not transferred this Option. A "Permitted
Transferee" means (A) any member of Optionee's Immediate Family,
including any child of a deceased or living spouse of Optionee or the
child or children of such child, or (B) any trust created for the
benefit of Optionee and/or any of his or her Immediate Family, or (C)
any corporation, partnership or other entity of which all the equity
owners are Optionee and/or members of his or her Immediate Family. A
Permitted Transferee may transfer this Option to another Permitted
Transferee of the Optionee, only with the prior written consent of the
Company. "Immediate Family" has the meaning given such term in the
regulations promulgated under Section 16 of the Securities Exchange Act
of 1934, as amended.
VIII. TAXATION UPON EXERCISE OF OPTION. The Company shall have the authority
and the right to deduct or withhold, or require Optionee to remit to
the Company, an amount sufficient to satisfy federal, state and local
taxes required by law to be withheld with respect to any taxable event
arising as a result of this Option. Optionee may elect, by irrevocable
written notice delivered to the Committee six (6) months prior to the
date of exercise, subject to any rules or policies of the Committee and
any restrictions under applicable law, to satisfy the withholding
requirement, in whole or in part, by having the Company withhold shares
of Common Stock having a fair market value on the date of withholding
equal to the amount to be withheld for tax purposes.
IX. NOT AN AGREEMENT TO CONTINUE SERVICE. Nothing in this Agreement shall
imply or be construed to confer any right to continue in the service of
the Company, nor shall it affect any right of the Company, its Board or
shareholders to terminate the service of Optionee with or without
cause.
X. GOVERNING LAW. This Agreement and the Option granted hereunder are
governed by, and shall be interpreted according to, the laws of the
State of Delaware.
XI. ELIGIBILITY. By acceptance of this Option, Optionee certifies to the
Company that the receipt of this Option is not contrary to any policy
or agreement of Optionee's employer.
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XII. ADJUSTMENT. The number of shares subject to this Option and the
exercise price of such Option are subject to appropriate adjustment by
the Board for stock splits, recapitalization and other similar
transactions affecting the Company's Common Stock.
XIII. ACCEPTANCE OF OPTION. By acceptance of this Option, Optionee (A)
represents that Optionee is familiar with the terms and provisions of
this Agreement, (B) agrees that this Agreement represents a binding
agreement between Optionee and the Company and accepts this Option
subject to all of the terms and provisions of this Agreement, (C)
agrees to accept as binding, conclusive and final all decisions or
interpretations of the Company upon any questions arising with respect
to this Option, and (D) acknowledges Optionee's representations as set
forth in Section IV of this Agreement.
DATE OF GRANT: December 4, 1998
VIASOFT, INC. ACCEPTED:
------------------------------------- ------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
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CONSENT OF SPOUSE
I, the undersigned spouse of have read and approve the foregoing Stock
Option Agreement. In consideration of the granting of the right to my spouse to
purchase shares of Viasoft, Inc., as set forth in the Agreement, I hereby
appoint my spouse as my attorney-in-fact with respect to the exercise of any
rights under the Agreement and agree to be bound by the provisions of the
Agreement (including the Company's right of first refusal therein) insofar as I
may have any rights in said Agreement or any shares issued pursuant thereto
under the community property laws of the State of Arizona or similar laws
relating to marital property in effect in the state of our residence as of the
date of the signing of the foregoing Agreement or otherwise.
Dated as of .
----------------------
(Officers form)
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SCHEDULE A TO EXHIBIT 10.1
Identical Stock Option Agreements under the same terms and conditions were
entered into as of December 4, 1998, with the following Outside Directors:
▇▇▇▇ ▇. ▇▇▇▇▇ III
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
J. ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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