Exhibit 10.12
TRANSPORT CORPORATION OF AMERICA, INC.
2001 EMPLOYEE STOCK PURCHASE PLAN
WHEREAS, Transport Corporation of America, Inc. established, effective
as of February 1, 1996, an employee stock purchase plan in accordance with
Section 423 of the Internal Revenue Code and authorized 100,000 shares of its
common stock to be reserved for issuance under the plan; and
WHEREAS, the plan expired on December 31, 2000, and there remained
73,603 shares of stock unissued under said plan; and
WHEREAS, the Board of Directors, at a meeting held on November 29,
2000, and subject to the approval of its shareholders, authorized a new stock
purchase plan to be established to provide employees the opportunity to continue
to purchase shares under such a plan.
THEREFORE, Transport Corporation of America hereby establishes this
Plan as set forth herein:
1. ESTABLISHMENT OF PLAN. Transportation Corporation of America, Inc.
(hereinafter referred to as the "Company") proposes to grant to certain
employees of the Company the opportunity to purchase common stock of the
Company. Such common stock shall be purchased pursuant to the plan herein set
forth which shall be known as the "Transport Corporation of America, Inc.
Employee Stock Purchase Plan" (hereinafter referred to as the "Plan"). The
Company intends that the Plan shall qualify as an "Employee Stock Purchase Plan"
under Section 423 of the Internal Revenue Code of 1986, as amended, and shall be
construed in a manner consistent with the requirements of said Section 423 and
the regulations thereunder.
2. PURPOSE. The Plan is intended to encourage stock ownership by employees of
the Company and any of its Subsidiaries to which the Company and such respective
Subsidiaries by action of their Boards of Directors shall make this Plan
applicable. The Plan is further intended as an incentive to them to remain in
employment, improve operations, increase profits, and contribute more
significantly to the Company's success, and to permit the Company to compete
with other corporations offering similar plans in obtaining and retaining the
services of competent employees.
3. ADMINISTRATION.
(a) The Plan shall be administered by a stock purchase
committee (hereinafter referred to as the "Committee"), consisting of
two or more directors or employees of the Company, as designated by the
Board of Directors of the Company (hereinafter referred to as the
"Board of Directors"). The Board of Directors shall fill all vacancies
in the Committee and may remove any member of the Committee at any
time, with or without cause.
(b) Unless the Board of Directors limits the authority
delegated to the Committee in its appointment, the Committee shall be
vested with full authority to make, administer, and interpret such
rules and regulations as it deems necessary to administer the Plan. For
all purposes of this Plan other than this Paragraph 3(b), references to
the Committee shall also refer to the Board of Directors.
1
(c) The Committee shall select its own chairman and hold its
meetings at such times and places as it may determine. All
determinations of the Committee shall be made by a majority of its
members. Any decision which is made in writing and signed by a majority
of the members of the Committee shall be effective as fully as though
made by a majority vote at a meeting duly called and held.
(d) The determinations of the Committee shall be made in
accordance with its judgment as to the best interests of the Company,
its employees and its shareholders and in accordance with the purposes
of the Plan; provided, however, that the provisions of the Plan shall
be construed in a manner consistent with the requirements of Section
423 of the Internal Revenue Code, as amended. Such determinations shall
be binding upon the Company and the participants in the Plan unless
otherwise determined by the Board of Directors.
(e) The Company shall pay all expenses of administering the
Plan. No member of the Board of Directors or the Committee shall be
liable for any action or determination made in good faith with respect
to the Plan or any option granted under it. The Company shall indemnify
each member of the Committee against any and all claims, loss, damages,
expenses (including counsel fees approved by the Committee), and
liability (including any amounts paid in settlement with the
Committee's approval) arising from any loss or damage or depreciation
which may result in connection with the execution of his or her duties
or the exercise of his or her discretion, or from any other action or
failure to act hereunder, except when the same is judicially determined
to be due to gross negligence or willful misconduct of such member.
4. DURATION AND PHASES OF THE PLAN.
(a) The Plan will commence on January 1, 2001, and will
terminate December 31, 2010, except that any Phase commenced prior to
such termination shall, if necessary, be allowed to continue beyond
such termination until completion. Notwithstanding the foregoing, this
Plan shall be considered of no force or effect and any options granted
shall be considered null and void unless the holders of a majority of
all of the issued and outstanding shares of the common stock of the
Company approve the Plan within twelve (12) months after the date of
its adoption by the Board of Directors. The Plan year shall be the same
as the Company's fiscal year, ending each December 31.
(b) The Plan shall be carried out in one or more Phases, each
Phase being for a period of six months, or such shorter or longer
period of time (not to exceed 27 months) as may be determined by the
Committee prior to the commencement of a Phase. No Phase shall run
concurrently with any other Phase but a Phase may commence immediately
after the termination of the preceding Phase. The existence and date of
commencement of a Phase (the "Commencement Date") shall be determined
by the Committee and shall terminate on a date (the "Termination Date")
determined by the Committee consistent with the limitation specified
above, provided that the commencement of the first Phase shall be
within twelve months before or after the date of approval of the Plan
by the shareholders of the Company. In the event all of the stock
reserved for grant of options hereunder is issued pursuant to the terms
hereof prior to the commencement of one or more Phases scheduled by the
Committee or the number of shares remaining is so small, in the opinion
of the Committee, as to render administration of any succeeding Phase
impracticable, such Phase or Phases shall be canceled. Phases shall be
numbered successively as Phase 1, Phase 2, Phase 3, etc.
2
(c) The Board of Directors may elect to accelerate the
Termination Date of any Phase effective on the date specified by the
Board of Directors in the event of (i) any consolidation or merger of
the Company in which the Company is not the continuing or surviving
corporation or pursuant to which shares would be converted into cash,
securities or other property, other than a merger of the Company in
which shareholders immediately prior to the merger have the same
proportionate ownership of stock in the surviving corporation
immediately after the merger; or (ii) any sale, lease, exchange or
other transfer (in one transaction or a series of related transactions)
of all or substantially all of the assets of the Company. Subject to
any required action by the shareholders, if the Company shall be
involved in any merger or consolidation, in which it is not the
surviving corporation, and if the Board of Directors does not
accelerate the Termination Date of the Phase, each outstanding option
shall pertain to and apply to the securities or other rights to which a
holder of the number of shares subject to the option would have been
entitled.
(d) A dissolution or liquidation of the Company shall cause
each outstanding option to terminate, provided in such event that,
immediately prior to such dissolution or liquidation, each Participant
shall be repaid the payroll deductions credited to his account without
interest.
5. ELIGIBILITY. All Employees, as defined in Paragraph 18 hereof who have
completed twelve or more months of continuous employment service for the Company
prior to the Commencement Date of a Phase shall be eligible to participate in
such Phase. Any Employee who is a member of the Board of Directors of the
Company who satisfies the above requirements shall be eligible to participate in
the Plan.
6. PARTICIPATION.
(a) Participation in the Plan is voluntary. An eligible
Employee may elect to participate in the Plan, and thereby become a
"Participant" in the Plan, by completing the enrollment form provided
by the Company and delivering it to the Company or its designated
representative at least ten days prior to the Commencement Date of that
Phase. The first Commencement Date shall be January 1, 2001. Payroll
deductions for a Participant shall commence on the first payday after
the Commencement Date of the Phase and shall terminate on the last
payday immediately prior to or coinciding with the Termination Date of
that Phase unless sooner terminated by the Participant as provided in
Paragraph 9 hereof. A Participant who ceases to be an eligible
Employee, although still employed by the Company, thereupon shall be
deemed to discontinue his or her participation in the Plan and shall
have the rights provided in Section 9.
(b) Once enrolled in the Plan, a Participant will continue to
participate in the Plan until he or she ceases to be an Eligible
Employee, withdraws from the Plan pursuant to Section 9 or reaches the
end of the Plan Period. A Participant who withdraws from the Plan
pursuant to Section 9 may again become a Participant, if he or she is
then an Eligible Employee, by proceeding as provided in Section 6(a)
above. A Participant whose payroll deductions were discontinued because
of Section 8(a)(iv)(A) will automatically resume participation at the
beginning of the earliest Phase of the Plan ending in the next calendar
year, if he or she is then an Eligible Employee.
3
7. PAYROLL DEDUCTIONS.
(a) Upon enrollment, a Participant shall elect to make
contributions to the Plan by payroll deductions, in full dollar amounts
and in amounts calculated to be as uniform as practicable throughout
the Phase, in the aggregate amount not in excess of 10% of such
Participant's Pay (as determined in accordance with Paragraph 18
hereof) for the term of the Phase or smaller percentage as may be
determined by the Committee prior to the commencement of a Phase). The
minimum authorization shall be $10 per pay period.
(b) In the event that the Participant's compensation for any
pay period is terminated or reduced from the compensation rate for such
a period as of the Commencement Date of the Phase for any reason so
that the amount actually withheld on behalf of the Participant as of
the Termination Date of the Phase is less than the amount anticipated
to be withheld over the Phase as determined on the Commencement Date of
the Phase, then the extent to which the Participant may exercise his
option shall be based on the amount actually withheld on his behalf. In
the event of a change in the pay period of any Participant, such as
from bi-weekly to monthly, an appropriate adjustment shall be made to
the deduction in each new pay period so as to ensure the deduction of
the proper amount authorized by the Participant.
(c) A Participant may discontinue his participation in the
Phase and terminate his payroll deduction authorized at such times as
determined by the Committee and shall have the rights provided in
Section 9. No change can be made during a Phase of the Plan which would
either change the time or increase or decrease the rate of his payroll
deductions.
(d) All payroll deductions made for Participants shall be
credited to their respective accounts under the Plan. A Participant may
not make any separate cash payments into such account.
8. OPTIONS.
(a) Grant of Option.
(i) A Participant who is employed by the Company as
of the Commencement Date of a Phase shall be granted an option
as of such date to purchase a number of full shares of Company
common stock to be determined by dividing the total amount
credited to that Participant's account under Paragraph 7
hereof by the option price set forth in Paragraph 8(a)(ii)
hereof, subject to the limitations of Paragraph 8(a)(iv) and
Paragraph 10 hereof.
(ii) The option price (rounded to the nearest whole
cent) for such shares of common stock shall be the lower of:
A. Eighty-five percent (85%) of the Fair
Market Value of such shares of common stock on the
Commencement Date of the Phase; or
B. Eighty-five percent (85%) of the Fair
Market Value of such shares of common stock on the
Termination Date of the Phase.
4
(iii) Stock options granted pursuant to the Plan may
be evidenced by agreements in such form as the Committee shall
approve, provided that all Employees shall have the same
rights and privileges and provided further that such options
shall comply with and be subject to the terms and conditions
set forth herein. The Committee may conclude that agreements
are not necessary.
(iv) Anything herein to the contrary notwithstanding,
no Employee shall be granted an option hereunder:
A. Which permits his rights to purchase
stock under all employee stock purchase plans of the
Company, its Subsidiaries or its parent, if any, to
accrue at a rate which exceeds the lesser of
Twenty-Five Thousand Dollars ($25,000) of the Fair
Market Value of such stock (determined at the time
such option is granted) for each calendar year in
which such option is outstanding at any time or
20,000 shares per Phase under the Plan; or
B. If immediately after the grant such
Employee would own and/or hold outstanding options to
purchase stock possessing five percent (5%) or more
of the total combined voting power or value of all
classes of stock of the Company, its parent, if any,
or of any subsidiary of the Company. For purposes of
determining stock ownership under this Paragraph, the
rules of Section 424(d) of the Internal Revenue Code,
as amended, shall apply.
(v) The grant of an option pursuant to this Plan
shall not affect in any way the right or power of the Company
to make adjustments, reclassifications, reorganizations or
changes of its capital or business structure or to merge or to
consolidate or to dissolve, liquidate or sell, or transfer all
or any part of its business or assets.
(b) EXERCISE OF OPTION.
(i) Unless a Participant gives written notice to the
Company pursuant to Paragraph 9 prior to the Termination Date
of a Phase, his option for the purchase of shares will be
exercised automatically for him as of such Termination Date
for the purchase of the number of full shares of Company
common stock which the accumulated payroll deductions in his
account at that time will purchase at the applicable option
price, but in no event shall the number of full shares be
greater than the number of full shares to which a Participant
would have been eligible to purchase under Section 8(a)(i),
and subject to the limitations set forth in Paragraph 10
hereof.
(ii) The Company shall, in addition, return to the
Participant a cash payment equal to the balance, if any, in
his account which was not used for the purchase of common
stock, without interest, as promptly as practicable after the
Termination Date of any Phase.
(iii) The Committee may appoint a registered broker
dealer to act as agent for the Company in holding and
performing ministerial duties in connection with the Plan,
including, but not limited to, maintaining records of stock
ownership by Participants and holding stock in its own name
for the benefit of the Participants. No trust or escrow
5
arrangement shall be express or implied by the exercise of
such duties by the agent. A Participant may, at any time,
request of the agent that any shares allocated to the
Participant be registered in the name of the Participant or in
joint tenancy with the Participant, in which event the agent
shall issue a certificate for the whole number of shares in
the name of the Participant (and his joint tenant, if any) and
shall deliver to the Participant any cash for fractional
shares, based on the then Fair Market Value of the shares on
the date of issuance.
(c) DIVIDEND REINVESTMENT. Unless the Committee designates
otherwise, and except as provided in this section, dividends on a
Participant's shares will automatically be reinvested in additional
shares of stock of the Company. If a Participant desires to receive
dividends in the form of cash, he must request that a certificate for
such shares be issued in the name of the Participant by filing an
appropriate form with the Company. Any shares purchased through the
reinvestment of dividends may be issued from the shares authorized
under this Plan or purchased on the open market, as directed by the
Committee. If the shares are purchased directly from the Company, the
purchase price shall be the Fair Market Value of a share or the date
such dividends are paid. Otherwise, the purchase price may be an
average of shares purchased on the open market with the aggregate
amount of dividends.
9. WITHDRAWAL OR TERMINATION OF PARTICIPATION.
(a) A Participant may, at any time prior to the Termination
Date of a Phase, withdraw all payroll deductions then credited to his
account by giving written notice to the Company. Promptly upon receipt
of such notice of withdrawal, all payroll deductions credited to the
Participant's account will be paid to him without interest accrued
thereon and no further payroll deductions will be made during the
Phase. In such event, the option granted the Participant under that
Phase of the Plan shall lapse immediately. Partial withdrawals of
payroll deductions hereunder may not be made.
(b) Notwithstanding the provisions of Section 9(a) above, if a
Participant files reports pursuant to Section 16 of the Securities
Exchange Act of 1934 (at the Commencement Date of a Phase or becomes
obligated to file such reports during a Phase) then such a
Participant's participation, including the ability to make changes and
withdrawals, in a Phase and in the Plan shall be in accordance with
Section 10b5-1 promulgated under the Securities Exchange Act of 1934.
(c) In the event of the death of a Participant, the person or
persons specified in Paragraph 14 may give notice to the Company within
sixty (60) days of the death of the Participant electing to purchase
the number of full shares which the accumulated payroll deductions in
the account of such deceased Participant will purchase at the option
price specified in Paragraph 8(a)(ii) and have the balance in the
account distributed in cash without interest accrued thereon to the
person or persons specified in Paragraph 14. If no such notice is
received by the Company within said sixty (60) days, the accumulated
payroll deductions will be distributed in full in cash without interest
accrued thereon to the person or persons specified in Paragraph 14.
6
(d) Upon termination of Participant's employment for any
reason other than death of the Participant, the payroll deductions
credited to his account, without interest, shall be returned to him.
(e) The Committee shall be entitled to make such rules,
regulations and determination as it deems appropriate under the Plan in
respect of any leave of absence taken by or disability of any
Participant. Without limiting the generality of the foregoing, the
Committee shall be entitled to determine:
(i) whether or not any such leave of absence shall
constitute a termination of employment for purposes of the
Plan; and
(ii) the impact, of any, of any such leave of absence
on options under the Plan theretofore granted to any
Participant who takes such leave of absence.
(f) A Participant who discontinues his participation during a
Phase shall not be permitted to recommence participation until the next
Commencement Date. A Participant's withdrawal will not have any effect
upon his eligibility to participate in any succeeding Phase of the Plan
that commences after the next Commencement Date or in any similar plan
which may hereafter be adopted by the Company.
10. STOCK RESERVED FOR OPTIONS.
(a) The maximum number of shares of the Company's common stock
to be issued upon the exercise of options to be granted under the Plan
shall be One Hundred Thousand (100,000). Such shares may, at the
election of the Board of Directors, be either shares authorized but not
issued or shares acquired in the open market by the Company. Shares
subject to the unexercised portion of any lapsed or expired option may
again be subject to option under the Plan.
(b) If the total number of shares of the Company common stock
for which options are to be granted for a given Phase as specified in
Paragraph 8 exceeds the number of shares then remaining available under
the Plan (after deduction of all shares for which options have been
exercised or are then outstanding) and if the Committee does not elect
to cancel such Phase pursuant to Paragraph 4, the Committee shall make
a pro rata allocation of the shares remaining available in as uniform
and equitable a manner as it shall consider practicable. In such event,
the options to be granted and the payroll deductions to be made
pursuant to the Plan which would otherwise be effected may, in the
discretion of the Committee, be reduced accordingly. The Committee
shall give written notice of such reduction to each Participant
affected.
(c) The Participant (or a joint tenant named pursuant to
Paragraph 10(d) hereof) shall have no rights as a shareholder with
respect to any shares subject to the Participant's option until the
date of the issuance of a stock certificate evidencing such shares. No
adjustment shall be made for dividends (ordinary or extraordinary,
whether in cash, securities or other property), distributions or other
rights for which the record date is prior to the date such stock
certificate is actually issued, except as otherwise provided in
Paragraph 12 hereof.
7
(d) The shares of the Company common stock to be delivered to
a Participant pursuant to the exercise of an option under the Plan will
be registered in the name of the Participant or, if the Participant so
directs by written notice to the Committee prior to the Termination
Date of that Phase of the Plan, in the names of the Participant and one
other person the Participant may designate as his joint tenant with
rights of survivorship, to the extent permitted by law.
11. ACCOUNTING AND USE OF FUNDS. Payroll deductions for each Participant shall
be credited to an account established for him under the Plan. Such account shall
be solely for bookkeeping purposes and no separate fund or trust shall be
established hereunder and the Company shall not be obligated to segregate such
funds. All funds from payroll deductions received or held by the Company under
the Plan may be used, without limitation, for any corporate purpose by the
Company.
12. ADJUSTMENT PROVISION.
(a) Subject to any required action by the shareholders of the
Company, the number of shares covered by each outstanding option, and
the price per share thereof in each such option, shall be
proportionately adjusted for any increase or decrease in the number of
issued shares of the Company common stock resulting from a subdivision
or consolidation of shares or the payment of a share dividend (but only
on the shares) or any other increase or decrease in the number of such
shares effected without receipt of consideration by the Company.
(b) In the event of a change in the shares of the Company as
presently constituted, which is limited to a change of all its
authorized shares with par value into the same number of shares with a
different par value or without par value, the shares resulting from any
such change shall be deemed to be the shares within the meaning of this
Plan.
(c) To the extent that the foregoing adjustments relate to
shares or securities of the Company, such adjustments shall be made by
the Committee, and its determination in that respect shall be final,
binding and conclusive, provided that each option granted pursuant to
this Plan shall not be adjusted in a manner that causes the option to
fail to continue to qualify as an option issued pursuant to an
"employee stock purchase plan" within the meaning of Section 423 of the
Code.
(d) Except as hereinbefore expressly provided in this
Paragraph 12, the optionee shall have no right by reason of any
subdivision or consolidation of shares of any class or the payment of
any stock dividend or any other increase or decrease in the number of
shares of any class or by reason of any dissolution, liquidation,
merger, or consolidation or spin-off of assets or stock of another
corporation, and any issue by the Company of shares of any class, or
securities convertible into shares of any class, shall not affect, and
no adjustment by reason thereof shall be made with respect to, the
number or price of shares subject to the option.
13. NON-TRANSFERABILITY OF OPTIONS.
(a) Options granted under any Phase of the Plan shall not be
transferable except under the laws of descent and distribution and
shall be exercisable only by the Participant during his lifetime and
after his death only by his beneficiary of the representative of his
estate as provided in Paragraph 9(c) hereof.
8
(b) Neither payroll deductions credited to a Participant's
account, nor any rights with regard to the exercise of an option or to
receive common stock under any Phase of the Plan may be assigned,
transferred, pledged or otherwise disposed of in any way by the
Participant. Any such attempted assignment, transfer, pledge or other
disposition shall be null and void and without effect, except that the
Company may, at its option, treat such act as an election to withdraw
funds in accordance with Paragraph 9.
14. DESIGNATION OF BENEFICIARY. A Participant may file a written designation of
a beneficiary who is to receive any cash to the Participant's credit without
interest thereon under any Phase of the Plan in the event of such Participant's
death prior to exercise of his option pursuant to Paragraph 9(b) hereof, or to
exercise his option and become entitled to any stock and/or cash upon such
exercise in the event of the Participant's death prior to exercise of the option
pursuant to Paragraph 9(b) hereof. The beneficiary designation may be changed by
the Participant at any time upon receipt of a written notice by the Company.
Upon the death of a Participant and upon receipt by the Company of
proof deemed adequate by it of the identity and existence at the Participant's
death of a beneficiary validly designated under the Plan, the Company shall in
the event of the Participant's death, allow such beneficiary to exercise the
Participant's option pursuant to Paragraph 9(c) if such beneficiary is living on
the Termination Date of the Phase and deliver to such beneficiary the
appropriate stock and/or cash after exercise of the option. In the event there
is not validly designated beneficiary under the Plan who is living at the time
of the Participant's death or in the event the option lapses, the Company shall
deliver the cash credited to the account of the Participant without interest to
the executor or administrator of the estate of the Participant, or if no such
executor or administrator has been appointed to the knowledge of the Company, it
may, in its discretion, deliver such cash to the spouse (or, if no surviving
spouse, to any one or more children of the Participant), or if no spouse or
child is known to the Company, then to such relatives of the Participant known
to the Company as would be entitled to such amounts, under the laws of intestacy
in the deceased Participant's domicile as though named as the designated
beneficiary hereunder. The Company will not be responsible for or be required to
give effect to the disposition of any cash or stock or the exercise of any
option in accordance with any will or other testamentary disposition made by
such Participant or in accordance with the provision of any law concerning
intestacy, or otherwise. No designated beneficiary shall, prior to the death of
a Participant by whom he has been designated, acquire any interest in any stock
or in any option or in the cash credited to the Participant under any Phase of
the Plan.
15 AMENDMENT AND TERMINATION. The Plan may be terminated at any time by the
Board of Directors provided that, except as permitted in Paragraph 4(c) with
respect to an acceleration of the Termination Date of any Phase, no such
termination will take effect with respect to any options then outstanding. Also,
the Board may, from time to time, amend the Plan as it may deem proper and in
the best interests of the Company or as may be necessary to comply with Section
423 of the Internal Revenue Code of 1986, as amended, or other applicable laws
or regulations; provided, however, that no such amendment shall, without prior
approval of the shareholders of the Company (1) increase the total number of
shares for which options may be granted under the Plan (except as provided in
Paragraph 12 herein), (2) permit aggregate payroll deductions in excess of ten
percent (10%) of a Participant's compensation as of the Commencement Date of a
Phase, or (3) impair any outstanding option.
16. NOTICES. All notices or other communications in connection with the Plan or
any Phase thereof shall be in the form specified by the Committee and shall be
deemed to have been duly given when
9
received by the Participant or his designated personal representative or
beneficiary or by the Company or its designated representative, as the case may
be.
17. PARTICIPATION OF SUBSIDIARIES. The Employees of any Subsidiary of the
Company, shall be entitled to participate in the Plan on the same basis as
Employees of the Company, unless the Board of Directors determines otherwise.
Effective as of the date of coverage of any Subsidiary, any references herein to
the "Company" shall be interpreted as referring to such Subsidiary as well as to
Transport Corporation of America, Inc.
In the event that any Subsidiary which is covered under the Plan ceases
to be a Subsidiary of the Company, the employees of such Subsidiary shall be
considered to have terminated their employment for purposes of Paragraph 9
hereof as of the date such Subsidiary ceases to be such a Subsidiary.
18. DEFINITIONS.
(a) "Subsidiary" shall include any domestic corporation
defined as a subsidiary of the Company in Section 424(f) of the
Internal Revenue Code of 1986, as amended.
(b) "Employee" shall mean any employee, including an officer,
of the Company who as of the day immediately preceding the Commencement
Date of a Phase is customarily employed by the Company for more than
twenty (20) hours per week and more than five (5) months in a calendar
year.
(c) "Fair Market Value" of a share of stock of the Company
shall be the closing price of the stock on the applicable date or the
nearest prior business day on which trading occurred on the exchange on
which the stock is traded or on the Nasdaq Stock Market. If the common
stock is not traded on any exchange or listed on the Nasdaq Stock
Market, the Fair Market Value of a share of common stock of the Company
shall be determined by the Committee for each valuation date in a
manner acceptable under Section 423 of the Internal Revenue Code of
1986, as amended.
(d) "Pay" is the regular pay for employment for each employee
as annualized for a twelve (12) month period, including salary
reduction contributions by the Participant under any plan of the
Employer pursuant to Code ss.ss. 401(k) or 125, but exclusive of
overtime, commissions, bonuses, disability payments, shift
differentials, incentives and other similar payments, determined as of
the Commencement Date of each Phase.
19. MISCELLANEOUS.
(a) No Employment Rights. The Plan shall not, directly or
indirectly, create any right for the benefit of any Employee or class
of Employees to purchase any shares under the Plan, or create in any
Employee or class of Employees any right with respect to continuation
of employment by the Company, and it shall not be deemed to interfere
in any way with the Company's right to terminate, or otherwise modify,
an Employee's employment at any time.
(b) Effect of Plan. The provisions of the Plan shall, in
accordance with its terms, be binding upon, and inure to the benefit
of, all successors of each Employee participating in the Plan,
including, without limitation, such Employee's estate and the
executors, administrators or
10
trustees thereof, heirs and legatees, and any receiver, trustee in
bankruptcy, or representative of creditors of such Employee.
(c) Governing Law. The law of the State of Minnesota will
govern all matters relating to this Plan except to the extent it is
superseded by the laws of the United States.
(d) Registration and Qualification of Shares. The offering of
the shares hereunder shall be subject to the effecting by the Company
of any registration or qualification of the shares under any federal or
state law or the obtaining of the consent or approval of any
governmental regulatory body which the Company shall determine, in its
sole discretion, is necessary or desirable as a condition to or in
connection with, the offering or the issue or purchase of the shares
covered thereby. The Company shall make every reasonable effort to
effect such registration or qualification or to obtain such consent or
approval.
(e) Plan Preconditions. The Plan is expressly made subject to
(i) the approval by shareholders of the Company, and (ii) at its
election, the receipt by the Company from the Internal Revenue Service
of a determination letter or ruling, in scope and content satisfactory
to counsel, respecting the qualification of the Plan within the meaning
of Section 423 of the Code. If the Plan is not so approved by the
shareholders and if, at the election of the Company, the aforesaid
determination letter or ruling from the Internal Revenue Service is not
received on or before one year after this Plan's adoption by the Board
of Directors, this Plan shall not come into effect. In such case, the
accumulated payroll deductions credited to the account of each
Participant shall forthwith be repaid to him without interest.
Approved by Board of Directors: November 29, 2000
Approved by Stockholders: May __, 2001
11