NICOLLET PROCESS ENGINEERING, INC.
1990 STOCK OPTION PLAN
Scope and Purpose of Plan
This Nicollet Process Engineering, Inc. 1990 Stock Option Plan
(the "Plan") provides for the granting of
(a) Incentive Options (hereinafter defined) to all
employees of Nicollet Process Engineering, Inc., a Minnesota
corporation (the "Corporation"), or of its affiliates (hereinafter
defined), and
(b) Nonqualified Options (hereinafter defined) and Stock
Appreciation Rights (hereinafter defined) to all employees and
directors of the Corporation or of its Affiliates.
The purpose of the Plan is to provide an incentive for all employees
and directors of the Corporation or its Affiliates to remain in the service of
the Corporation or its Affiliates, to extend to them the opportunity to acquire
a proprietary interest in the Corporation so that they will apply their best
efforts for the benefit of the Corporation, and to aid the Corporation in
attracting able persons to enter the service of the Corporation and its
Affiliates.
SECTION 1. Definitions.
1.01 "Affiliates" means any corporation, other than the Corporation, in
an unbroken chain of corporations beginning with the Corporation if each of the
corporations, other than the last corporation in the unbroken chain, owns stock
possessing fifty percent (50%) or more of the total combined voting power of all
classes of stock in one of the other corporations in such chain.
1.02 "Agreement" shall mean the agreement between the Corporation and
the individual to whom Options or SARs are granted.
1.03 "Base Amount" shall mean the amount designated in an Agreement
that establishes the lower limit used for measuring a Holder's right to receive
cash or shares of the Stock on exercise of an SAR.
1.04 "Board of Directors" shall mean the board of directors of the
Corporation.
1.05 "Code" means the Internal Revenue Code of 1986 as amended from
time to time.
1.06 "Director" shall mean a member of the Board of Directors of the
Corporation or any of its affiliates.
1.07 "Eligible Individuals" shall mean in the case of Incentive Options
all employees, which shall be deemed to include officers and directors who are
also employees of the Corporation or of any of its Affiliates, and shall mean in
the case of Nonqualified Options and Stock Appreciation Rights all employees and
directors of the Corporation or any of its affiliates.
1.08 "Fair Market Value" shall mean, if the Stock is traded on one or
more established markets or exchanges, the mean of the opening and closing
prices of the Stock in the primary market or exchange on which the Stock is
traded, and if the Stock is not so traded or the Stock does not trade on the
relevant date, the value determined in good faith by the Board of Directors. For
purposes of valuing Incentive Options, the Fair Market Value of stock shall be
determined without regard to any restriction other than one which, by its terms,
will never lapse.
1.09 "Holder" shall mean an Eligible Individual to whom an Option or
SAR has been granted.
1.10 "Incentive Options" shall mean stock options that satisfy the
requirements of Section 422A of the Code.
1.11 "Nonqualified Options" shall mean stock options which do not
satisfy the requirements of Section 422A of the Code.
1.12 "Options" shall mean either Incentive Options or Nonqualified
Options, or both.
1.13 "Stock" shall mean the Corporation's authorized no par value
common stock together with any other securities with respect to which Options or
SARs granted hereunder may become exercisable.
1.14 "Stock Appreciation Right" or "SAR" shall mean a right to receive
on exercise an amount of cash (or, at the Corporation's option, a number of
shares of the Stock with a Fair Market Value as of the date of exercise) equal
to the difference on the exercise date between the Fair Market Value of the
Stock on such date and the Base Amount.
SECTION 2. Stock and Maximum Number of Shares Subject to the Plan.
2.01 Description of Stock and Maximum Shares Allocated. The Stock which
Options granted hereunder give the holder thereof the right to purchase and the
Stock that may be issued or delivered in payment of SARs may be unissued or
reacquired shares of Stock, as the Board of Directors may, in its sole and
absolute discretion, from time to time determine. Subject to the adjustments
provided for in Paragraph 6.07 hereof, the aggregate number of shares of Stock
to be issued pursuant to the exercise of all Options or SARs granted hereunder
shall not exceed 100,000 shares. For purposes of calculating the number of
shares charged against the maximum number of shares set forth above, in the case
of the exercise of an SAR, the number of whole shares of Stock issued or
delivered with respect to such SAR shall be charged against the maximum number
of shares set forth above.
2.02 Restoration of Unpurchased Shares. If an Option granted hereunder
expires or terminates for any reason during the term of this Plan and prior to
the exercise thereof in full, the shares of Stock subject to but not issued
under such Option shall again be available for Options granted hereunder
subsequent thereto.
SECTION 3. Administration of the Plan.
3.01 Stock Option Committee. The Plan shall be administered by the
Board of Directors or a committee appointed by the Board of Directors (the
"Committee").
3.02 Duration, Removal, Etc. The members of the Committee shall serve
at the pleasure of the Board of Directors, which shall have the power, at any
time and from time to time, to remove members from the Committee or to add
members thereto. Vacancies on the Committee, however caused, shall be filled by
action of the Board of Directors.
3.03 Meetings and Actions of the Committee. The Committee shall elect
one of its members as its Chairman and shall hold its meetings at such times and
places as it may determine. All decisions and determinations of the Committee
shall be made by the majority vote or decision of all of its members, whether
present or not; provided, however, that any decision or determination reduced to
writing and signed by all of the members of the Committee shall be as fully
effective as if it had been made at a meeting duly called and held. The
Committee may make any rules and regulations for the conduct of its business
that are not inconsistent with the provisions hereof and with the bylaws of the
Corporation as it may deem advisable.
3.04 Powers of the Board of Directors or Committee. Subject to the
express provisions hereof, the Board of Directors or the Committee, if one shall
be appointed, shall have the authority, in its sole and absolute discretion, (a)
to adopt, amend, and rescind administrative and interpretive rules and
regulations relating to the Plan; (b) to determine the terms and provisions of
the respective Agreements (which need not be identical), including provisions
defining or otherwise relating to (i) subject to Section 6 of the Plan, the term
and the period or periods and extent of exercisability of the Options and SARs,
(ii) the extent to which the transferability of shares of Stock issued upon
exercise of Options and SARs is restricted, (iii) the effect of termination of
employment upon the exercisability of the Options and SARS, and (iv) the effect
of approved leaves of absence (consistent with any applicable regulations of the
Internal Revenue Service); (c) subject to Paragraph 6.06, to accelerate the time
of exercisability of any Option or SAR that has been granted; (d) to construe
the respective Option and SAR Agreements and the Plan; and (e) to make all other
determinations necessary or advisable for administering the Plan. The Board of
Directors or the Committee may correct any defect or supply any omission or
reconcile any inconsistency in the Plan or in any Option or SAR Agreement in the
manner and to the extent it shall deem expedient to carry it into effect, and it
shall be the sole and final judge of such expediency. The determinations of the
Board of Directors or the Committee, if there be one, on the matters referred to
in this Paragraph 3.04 shall be final and conclusive.
SECTION 4. Eligibility and Participation.
4.01 Eligible Individuals. Options and SARs may be granted hereunder
only to persons who are Eligible Individuals at the time of the grant thereof.
Notwithstanding any provision contained herein to the contrary, a person shall
not be eligible to receive an Incentive Option hereunder unless he is an
employee of the Corporation or an Affiliate, nor shall a person be eligible to
receive an Incentive Option hereunder if he, at the time such option is granted,
would own (within the meaning of sections 422A and 425 of the Code) stock
possessing more than ten percent (10%) of the total combined voting power or
value of all classes of stock of the Corporation or an Affiliate unless at the
time such Incentive Option is granted, the exercise price per share of Stock is
at least one hundred and ten percent (110%) of the Fair Market Value of each
share of Stock to which the Incentive Option relates and the Incentive Option is
not exercisable after the expiration of five (5) years from the date it is
granted.
4.02 No Right to Option or SAR. The adoption of the Plan shall not be
deemed to give any person a right to be granted an Option or SAR hereunder.
SECTION 5. Grant of Options and SARs.
Subject to the express provisions hereof, the Board of Directors or the
Committee, if one shall be appointed, shall determine which Eligible Individuals
shall be granted Options and SARs hereunder from time to time. The Board of
Directors or the Committee, if one shall be appointed, shall also determine the
number of shares subject to each of such Options, the number of SARs to be
granted, and shall authorize the granting of Options and SARs in accordance with
such determinations. Each Option and SAR granted hereunder shall be evidenced by
an Agreement, executed by the Corporation and the Eligible individual to whom
the Option or SAR is granted, incorporating such terms as the Board of Directors
or the Committee shall deem necessary or desirable. More than one Option or SAR
may be granted hereunder to the same eligible individual and be outstanding
concurrently hereunder. In the event an Eligible Individual is granted both one
or more Incentive Options and one or more Nonqualified Options, such grants
shall be evidenced by separate Agreements, one each for the Incentive Option
grants and one each for the Nonqualified Option grants.
SECTION 6. Terms and Conditions of Options.
All Options and SARs granted hereunder shall comply with, be deemed to
include, and shall be subject to the following terms and conditions:
6.01 Number of Shares and Individual Stock Appreciation Rights. Each
Agreement shall state the number of shares of Stock and SARs to which it
relates.
6.02 Exercise Price and Base Amount. Each Agreement shall state the
exercise price per share, in the case of Options, and the Base Amount per SAR,
in the case of SARs. The exercise price per share of Stock subject to an
Incentive Option shall not be less than the greater of (a) the par value per
share of said Stock or (b) 100% of the Fair Market Value per share of said Stock
on the date of the grant of the Option or the amount specified in Paragraph
4.01, whichever is applicable; and the Base Amount under a SAR granted in tandem
with an Incentive Option shall likewise not be less than the greater of such
amounts.
6.03 Medium, Time of Payment, and Method of Exercise. The exercise
price of an Option shall be payable upon the exercise of the Option in cash, by
certified or cashier's check, or, with the consent of the Board of Directors or
the Committee, with shares of Stock of the Corporation owned by the Holder
immediately prior to such exercise. Exercise of an Option or SAR shall not be
effective until the Corporation has received written notice of exercise. In the
case of an Option, such notice must specify the number of whole shares to be
purchased and be accompanied by payment in full of the aggregate Option price of
the number of shares purchased. In the case of an SAR, the notice must specify
the number of SARs being exercised. The Corporation shall not in any case be
required to sell, issue, or deliver a fractional share with respect to any
Option or SAR.
6.04 Additional Provisions Relating to SARs. The Board of Directors or
the Committee may, in its discretion, grant SARs to Eligible Individuals either
separately or in tandem with, and in direct relation to, Options granted
pursuant to the Plan, including Incentive Options. If granted in tandem, the
exercise of an Option shall cause a correlative reduction in the number of SARs
granted in tandem with such Option. The exercise of an SAR issued in tandem with
a stock option shall cause a correlative reduction in the number of shares which
may be acquired pursuant to the exercise of such Option. When issued in tandem,
the Agreement shall provide for the correlative reduction described in the
preceding sentence.
An SAR granted in tandem with an Incentive Option must have a Base
Amount equal to the exercise price of the Incentive Option. Such SAR may be
exercised only when the underlying Incentive Option is eligible to be exercised.
In addition, such SAR may only be exercised when the Fair Market Value of the
Stock subject to the Incentive Option exceeds the exercise price of the
Incentive Option.
Upon exercise of an SAR or portion thereof, the Holder shall, in the
manner provided in Paragraph 6.05, receive an amount equal to aggregate
difference between the Fair Market Value, as of the date of exercise, of a
number of shares of the Stock equal to the number of SARs exercised and the
aggregate of the Base Amounts with respect to such SARs. Payment of such amount
shall, at the Corporation's option, be made in cash, notes, whole shares of
Stock (valued at Fair Market Value on the date of exercise), or in a combination
of cash, notes, and/or whole shares of Stock. In case the Corporation elects to
deliver only shares of the Stock, payment shall be made in whole shares, rounded
down to the next number of whole shares of Stock.
6.05 Term, Time of Exercise, and Transferability of Options. In
addition to such other terms and conditions as may be included in a particular
Agreement granting an Option or SAR, an Option or SAR shall be exercisable
during a Holder's lifetime only by him or by his guardian or legal
representative. Neither an Option nor an SAR shall be transferrable other than
by will or the laws of descent and distribution. Each Option and SAR shall also
be subject to the following terms and conditions:
(a) Termination of Employment. The provisions of this
Paragraph 6.05(a) shall apply to the extent a Holder's Agreement does
not expressly provide otherwise. If a Holder ceases to be employed by
the Corporation or an Affiliate because the Holder voluntarily
terminates employment with such employer (and does not thereupon become
an employee of the Corporation or one of its Affiliates), the portion,
if any, of an Option or SAR that remains unexercised, including that
portion, if any, that pursuant to the Agreement is not yet exercisable,
on the date of the holder's termination of employment shall terminate
and cease to be exercisable as of such date, If a Holder ceases to be
employed by the Corporation or an Affiliate because any of such
entities terminates the Holder's employment for cause, the portion, if
any, of an Option or SAR that remains unexercised, including that
portion, if any, that pursuant to the Agreement is not yet exercisable,
on the date of the Holder's termination of employment shall terminate
and cease to be exercisable as of such date. A holder's employment
shall be deemed terminated "for cause" if terminated by the Board of
Directors of the Corporation or the board of directors of an Affiliate
because of incompetence, insubordination, dishonesty, other acts
detrimental to the interest of the Corporation or its Affiliates, or
any material breach by the Holder of any employment, nondisclosure,
noncompetition, or other contract with the Corporation or one of its
Affiliates. Whether cause exists shall be determined by such board of
directors in its sole discretion and in good faith. If a Holder ceases
to be employed by the Corporation or an Affiliate because one of such
entities terminates the employment of the Holder but not for cause (and
the Holder does not thereupon become an employee of the Corporation or
one of its Affiliates), the Holder shall have the right for sixty (60)
days after such termination of employment to exercise the Option or SAR
with respect to that portion thereof that has become exercisable
pursuant to Holder's Agreement as of the date of the Holder's
termination of employment.
(b) Disability. The provisions of this Paragraph 6.05(b) shall
apply to the extent a Holder's Agreement does not expressly provide
otherwise. If a Holder ceases to be employed by the Corporation or an
Affiliate by reason of disability (as defined in section 105(d)(4) of
the Code), the Holder shall have the right for one hundred twenty (120)
days after the date of termination of employment with the Corporation
or the Affiliate by reason of disability to exercise an Option or SAR
to the extent such Option or SAR is exercisable on the date of his
termination of employment.
(c) Death. The provisions of this Paragraph 6.05(c) shall
apply to the extent a Holder's Agreement does not expressly provide
otherwise. If a Holder dies while in the employ of the Corporation or
an Affiliate an Option or SAR shall be exercisable by the Holder's
legal representatives, legatees, or distributees for one hundred twenty
(120) days following the date of the Holder's death to the extent such
Option or SAR is exercisable on the holder's date of death.
Notwithstanding any other provision of this Plan, including the
provisions of items (a), (b), and (c) of this Paragraph 6.05, no Incentive
Option, or SAR granted in tandem with an Incentive Option granted hereunder,
shall be exercisable after the expiration of ten (10) years from the date it is
granted, or the period specified in Paragraph 4.01, if applicable. The Board of
Directors or the Committee shall have authority to prescribe in any Agreement
that the Option or SAR evidenced thereby may be exercised in full or in part as
to any number of shares or SARs subject thereto at any time or from time to time
during the term of the Option or SAR, or in such installments at such times
during said term as the Board of Directors or the Committee may prescribe.
Except as provided above and unless otherwise provided in any Agreement, an
Option or SAR may be exercised at any time or from time to time during the term
of the Option or SAR. In the case of an Option, such exercise may be as to any
or all whole (but no fractional) shares which have become purchasable under the
Option.
Within a reasonable time after the Corporation receives written notice
that the Holder has elected to exercise all or a portion of an Option, such
notice to be accompanied by payment in full of the aggregate Option price of the
number of shares purchased, the Corporation shall issue and deliver a
certificate representing the shares acquired in consequence of the exercise and
any other amounts payable in consequence of such exercise. Within a reasonable
time after the Corporation receives written notice that the Holder has elected
to exercise all or a portion of an SAR, the Corporation shall pay the amount due
pursuant to Paragraph 6.04 in the form of cash or notes or some combination
thereof as specified in the Agreement; provided, however, the Corporation may
satisfy such obligation by transferring shares of Stock of equal value to the
Holder. In the event that a Holder exercises both an Incentive Option, or
portion thereof, and a Nonqualified Option, or a portion thereof, separate Stock
certificates shall be issued, one for the Stock subject to the Incentive Option
and one for the Stock subject to the Nonqualified Option. Separate certificates
shall also be issued with respect to any Stock issued or delivered in payment of
an SAR. The value of the amount of the shares of Stock, cash or notes
transferrable due to an exercise of an Option or SAR under this plan shall not
be increased due to the passage of time, except as may be provided in an
Agreement.
Nothing herein or in any Option or SAR granted hereunder shall require
the Corporation to issue any shares upon exercise of any Option or SAR if such
issuance would, in the opinion of counsel for the Corporation, constitute a
violation of the Securities Act of 1933, as amended, or any similar or
superseding statute or statutes, or any other applicable statute or regulation,
as then in effect. At the time of any exercise of an Option or SAR, the
Corporation may, as a condition precedent to the exercise of such Option or SAR,
require from the Holder of the Option or SAR (or in the event of his death, his
legal representatives, legatees, or distributees) such written representations,
if any, concerning his intentions with regard to the retention or disposition of
the shares being acquired by exercise of such Option or in payment of such SAR
and such written covenants and agreements, if any, as to the manner of disposal
of such shares as, in the opinion of counsel to the Corporation, may be
necessary to ensure that any disposition by such Holder (or in the event of his
death, his legal representatives, legatees, or distributees), will not involve a
violation of the Securities Act of 1933, as amended, or any similar or
superseding statute or statutes, or any other applicable state or federal
statute or regulation, as then in effect. Certificates for shares of Stock, when
issued, may have the following legend, or statements of other applicable
restrictions, endorsed thereon, and may not be immediately transferable:
The shares of Stock evidenced by this certificate have been issued to
the registered owner in reliance on written representations that these
shares have been purchased for investment. These shares may not be
sold, transferred, or assigned unless, in the opinion of the
Corporation and its legal counsel, such sale, transfer, or assignment
will not be in violation of the Securities Act of 1933, as amended,
applicable rules and regulations of the Securities and Exchange
Commission, and any applicable state securities laws.
6.06 Limitation on Aggregate Value of Shares That May Become First
Exercisable During Any Calendar Year Under an Incentive Option. With respect to
an Incentive Option granted under this Plan, the aggregate Fair Market Value of
shares of Stock subject to such Incentive Option and the aggregate Fair Market
Value of shares of Stock or stock of any Affiliate (or a predecessor of the
Corporation or an Affiliate) subject to any other incentive stock option (within
the meaning of Section 422A of the Code) of the Corporation and its Affiliates
(or a predecessor corporation of any such corporation), to the extent such
options become first exercisable in any calendar year, may not (with respect to
any holder) exceed $100,000, determined as of the date the Incentive Option is
granted. For purposes of this Paragraph 6.06, "predecessor corporation" means a
corporation that was a party to a transaction described in Section 425(a) of the
Code (or which would be so described if a substitution or assumption under such
section had been effected) with the Corporation, or a corporation which, at the
time the new incentive stock option (within the meaning of section 422A of the
Code) is granted, is an Affiliate of the Corporation or a predecessor
corporation of any such corporations, or a predecessor corporation of any such
corporations.
6.07 Adjustments Upon Changes in Capitalization. Notwithstanding any
other provision hereof, in the event of any change in the number of outstanding
shares of Stock effected without receipt of consideration therefor by the
Corporation, by reason of a stock dividend, or split, combination, exchange of
shares or other recapitalization, merger, or otherwise, in which the Corporation
is the surviving corporation, the aggregate number and class of the reserved
shares, the number and class of shares subject to each outstanding Option and
the Option price of each outstanding Option, and the number of SARs and the Base
Amount(s) under each outstanding SAR shall be automatically adjusted to
accurately and equitably reflect the effect thereon of such change, provided
that any fractional share resulting from such adjustment may be eliminated. In
the event of a dispute concerning such adjustment, the decision of the Board of
Directors or the Committee shall be conclusive. The number of reserved shares or
the number of shares subject to any outstanding Option shall be automatically
reduced by any fraction included therein which results from any adjustment made
pursuant to this Paragraph 6.07. A dissolution or liquidation of the
Corporation, a merger (other than a merger effecting a reincorporation of the
Corporation in another state) or consolidation in which the Corporation is not
the surviving corporation, or a transaction in which another corporation becomes
the owner of 50% or more of the total combined voting power of all classes of
stock of the Corporation shall cause every Option and SAR then outstanding to
terminate, but the Holders of such then outstanding Options and SARs shall, in
any event, subject to the limitation on the number of shares that may become
first exercisable during any calendar year set forth in Paragraph 6.06, have the
right, immediately prior to such dissolution, liquidation, merger,
consolidation, or transaction, to exercise such Options or SARs, to the extent
not theretofore exercised, without regard to the determination as to the periods
and installments of exercisability made pursuant to Paragraph 6.13 if (and only
if) such Options or SARs have not at that time expired or been terminated. Such
acceleration of exercisability shall not apply to a given Option or SAR if any
surviving or acquiring corporation agrees to assume such Option or SAR in
connection with the merger, consolidation, or transaction or agrees to
substitute a new Option satisfying the requirements of section 425(a) of the
Code or to substitute a new SAR.
6.08 Rights as a Shareholder. A Holder shall have no right as a
shareholder with respect to any shares covered by his Option or payable with
respect to an SAR until a certificate representing such shares is issued to him.
No adjustment shall be made for dividends (ordinary or extraordinary, whether in
cash or other property) or distributions or other rights for which the record
date is prior to the date such certificate is issued, except as provided in
Paragraph 6.07 hereof.
6.09 Modification, Extension and Renewal of Options and SARs. Subject
to the terms and conditions of and within the limitations of the Plan, the Board
of Directors or the Committee may modify, extend or renew outstanding Options
and SARs granted under the Plan, or accept the surrender of Options and SARs
outstanding hereunder (to the extent not theretofore exercised) and authorize
the granting of new Options and SARs hereunder in substitution therefor (to the
extent not theretofore exercised). The Board of Directors or the Committee may
not, however, without the consent of the Holder, modify any outstanding Options
or SARs so as to specify a lower exercise price or Base Amount or accept the
surrender of outstanding Incentive Options and authorize the granting of new
Options in substitution therefor specifying a lower option price. In addition,
no modification of an Option or SAR granted hereunder shall, without the consent
of the Holder, alter or impair any rights or obligations under any Option or SAR
theretofore granted hereunder to such Holder under the Plan, except as may be
necessary, with respect to Incentive Options, to satisfy the requirements of
section 422A of the Code.
6.10 Furnish Information. Each Holder shall furnish to the Corporation
all information requested by the Corporation to enable it to comply with any
reporting or other requirement imposed upon the Corporation by or under any
applicable statute or regulation.
6.11 Obligation to Exercise; Termination of Employment. The granting of
an Option or SAR hereunder shall impose no obligation upon the Holder to
exercise the same or any part thereof. In the event of a Holder's termination of
employment with the Corporation or an Affiliate, the unexercised portion of an
Option or SAR granted hereunder shall terminate in accordance with Paragraph
6.05 hereof.
6.12 Agreement Provisions. The Agreements authorized under the Plan
shall contain such other provisions (including, without limitation, restrictions
or the removal of restrictions upon the exercise of the Option or SAR and the
transfer of shares thereby acquired) as the Board of Directors or the Committee
shall deem advisable. Each such Agreement relating to Incentive Options granted
hereunder, and any SARs granted in tandem therewith, shall contain such
limitations and restrictions upon the exercise of the Incentive Option or SAR to
which it relates as shall be necessary for the Incentive Option to which such
Agreement relates to constitute an incentive stock option, as defined in section
422A of the Code.
SECTION 7. Restrictions on Shares of the Stock Acquired Upon Exercise of an
Option, SAR, or Otherwise.
7.01 Discretion of the Board of Directors or Committee. Each Agreement
may contain or otherwise provide for such restrictions on the transferability of
shares of the Stock acquired pursuant to an Option or SAR granted hereunder or
otherwise as the Board of Directors or the Committee in its sole and absolute
discretion shall deem proper or advisable. Such restrictions on transferability
may include, but need not be limited to, options and rights of first refusal in
favor of the Corporation and shareholders of the Corporation other than the
Holder who is a party to the particular Agreement.
7.02 Remedies and Endorsement.
(a) The Corporation shall be entitled to recover from a holder
reasonable attorneys fees incurred in connection with the enforcement
of the terms and provisions of the Plan and any Agreement whether by an
action to enforce specific performance or for damages for its breach or
otherwise.
(b) Each certificate representing shares issued to a Holder
upon exercise of an Option or SAR granted under the Plan shall, if such
share is subject to any transfer restriction, including a right of
first refusal, provided for under this Plan or an Agreement, bear a
legend that complies with applicable law with respect to the
restrictions on transferability contained in this Section 7:
The shares represented by this certificate are subject to
restrictions on transferability imposed by that certain
instrument entitled "Nicollet Process Engineering, Inc. 1990
Employee Stock Option Plan" dated ___________, 1990, and an
agreement thereunder between Nicollet Process Engineering,
Inc. and __________________ dated ____________________, 1990
which grants to the Corporation an option to purchase such
shares in certain instances. A copy of such plan and agreement
is on file at the principal office of the Corporation, and is
subject to the same right of examination by a shareholder of
the Corporation (in person or by agent, attorney, or
accountant) as are the books and records of the Corporation.
SECTION 8. Term of Plan.
No Options or SARs may be granted hereunder after the date that is ten
(10) years from the earlier of (i) the date the Plan is adopted by the Board of
Directors or (ii) the date the Plan is approved by the shareholders of the
Corporation.
SECTION 9. Amendment of Plan.
The Board of Directors may, insofar as permitted by law, with respect
to any shares at the time not subject to Options or deliverable with respect to
SARs that have been exercised, suspend or discontinue the Plan or revise or
amend it in any respect whatsoever; provided, however, that, without the
approval of the holders of a majority of the outstanding shares of voting stock
of all classes of the Corporation, no such revision or amendment shall (a)
change the number of shares of the Stock or the number of SARs subject to the
Plan, (b) change the designation of the class of employees eligible to receive
Options and SARs, (c) decrease the price at which Incentive Options may be
granted, (d) remove the administration of the Plan from the Board of Directors
or the Committee, (e) render the members of the Board of Directors or the
Committee eligible to receive Options under the Plan while serving as such, or
(f) without the consent of the affected holder, cause the Incentive Options
granted hereunder and outstanding at such time that satisfied the requirements
of section 422A of the Code to no longer satisfy such requirements. Furthermore,
the Plan shall not, without such approval of the shareholders, be amended in any
manner that will cause Incentive Options issued under it to fail to satisfy the
requirements applicable to incentive stock options as defined in section 422A of
the Code.
SECTION 10. General.
10.01 Application of Funds. The proceeds received by the Corporation
from the sale of shares pursuant to Options shall be used for general corporate
purposes.
10.02 Right of the Corporation and Affiliates to Terminate Employment.
Nothing contained in the Plan, or in any Agreement, shall confer upon any Holder
the right to continue in the employ of the Corporation or any Affiliate, or
interfere in any way with the rights of the Corporation or any Affiliate to
terminate his employment any time.
10.03 No Liability for Good Faith Determinations. Neither the members
of the Board of Directors nor any member of the Committee shall be liable for
any act, omission, or determination taken or made in good faith with respect to
the Plan or any Option or SAR granted under it.
10.04 Information Confidential. As partial consideration for the
granting of each Option or SAR hereunder, the holder shall agree with the
Corporation that he will keep confidential all information and knowledge which
he has relating to the manner and amount of his participation in the Plan;
provided, however, that such information may be given in confidence to the
Holder's spouse, attorney, personal tax advisor, or to a financial institution
to the extent that such information is necessary in order to secure a loan. In
the event any breach of this promise comes to the attention of the Board of
Directors or the Committee, it shall take into consideration such breach, in
determining whether to recommend the grant of any future Option or SAR to such
Holder, as a factor militating against the advisability of granting any such
future Option or SAR to such employee.
10.05 Other Benefits. Participation in the Plan shall not preclude the
Holder from eligibility in any other stock option plan of the Corporation or any
Affiliate or any old age benefit, insurance, pension, profit sharing,
retirement, bonus, or other extra compensation plans which the Corporation or
any Affiliate has adopted, or may, at any time, adopt for the benefit of its
employees.
10.06 Execution of Receipts and Releases. Any payment of cash or any
issuance or transfer of shares of Stock to the Holder, or to his legal
representative, heir, legatee, or distributee, in accordance with the provisions
hereof, shall, to the extent thereof, be in full satisfaction of all claims of
such persons hereunder. The Board of Directors or the Committee may require any
Holder, legal representative, heir, legatee, or distributee, as a condition
precedent to such payment, to execute a release and receipt therefor in such
form as it shall determine.
10.07 No Guarantee of Interests. Neither the Board of Directors nor the
Committee nor the Corporation guarantees the Stock of the Corporation from loss
or depreciation.
10.08 Payment of Expenses. All expenses incident to the administration,
termination, or protection of the Plan, including, but not limited to, legal and
accounting fees, shall be paid by the Corporation or its Affiliates; provided,
however, the Corporation or an Affiliate may recover any and all damages, fees,
expenses, and/or costs arising out of any actions taken by the Corporation to
enforce its right to purchase Stock under Paragraph 7.01 hereof.
10.09 Corporation Records. Records of the Corporation or its Affiliates
regarding the Holder's period of employment, termination of employment and the
reason therefor, leaves of absence, re-employment, and other matters shall be
conclusive for all purposes hereunder, unless determined by the Board of
Directors or the Committee to be incorrect.
10.10 Information. The Corporation and its Affiliates shall, upon
request or as may be specifically required hereunder, furnish or cause to be
furnished, all of the information or documentation which is necessary or
required by the Board of Directors or the Committee to perform its duties and
functions under the Plan.
10.11 No Liability of Corporation. The Corporation assumes no
obligation or responsibility to the Holder or his personal representatives,
heirs, legatees, or distributees for any act of, or failure to act on the part
of, the Board of Directors or the Committee.
10.12 Corporation Action. Any action required of the Corporation shall
be by resolution of its Board or by a person authorized to act by resolution of
the Board of Directors.
10.13 Severability. If any provision of this Plan is held to be illegal
or invalid for any reason, the illegality or invalidity shall not affect the
remaining provisions hereof, but such provision shall be fully severable and the
Plan shall be construed and enforced as if the illegal or invalid provision had
never been included herein.
10.14 Notices. Whenever any notice is required or permitted hereunder,
such notice must be in writing and personally delivered or sent by mail. Any
notice required or permitted to be delivered hereunder shall be deemed to be
delivered on the date on which it is personally delivered, or, whether actually
received or not, on the third business day after it is deposited in the United
States mail, certified or registered, postage prepaid, addressed to the person
who is to receive it at the address which such person has theretofore specified
by written notice delivered in accordance herewith. The Corporation or a Holder
may change, at any time and from time to time, by written notice to the other,
the address which it or he had theretofore specified for receiving notices.
Until changed in accordance herewith, the Corporation and each Holder shall
specify as its and his address for receiving notices the address set forth in
the Agreement pertaining to the shares to which such notice relates.
10.15 Waiver of Notice. Any person entitled to notice hereunder may
waive such notice.
10.16 Successors. The Plan shall be binding upon the Holder, his heirs,
legatees, and legal representatives, upon the Corporation, its successors, and
assigns, and upon the Board of Directors or the Committee, and its successors.
10.17 Headings. The titles and headings of Sections and Paragraphs are
included for convenience of reference only and are not to be considered in
construction of the provisions hereof.
10.18 Governing Law. All questions arising with respect to the
provisions of the Plan as they relate to the internal affairs of the Corporation
shall be determined by application of the laws of the State of Minnesota and all
other questions arising with respect to the provisions of the Plan shall be
determined by application of the laws of the State of Minnesota, except to the
extent Minnesota law is preempted by federal law.
The obligation of the Corporation to sell and deliver Stock hereunder
is subject to applicable laws and to the approval of any governmental authority
required in connection with the authorization, issuance, sale, or delivery of
such Stock.
10.19 Word Usage. Words used in the masculine shall apply to the
feminine where applicable, and wherever the context of this Plan dictates, the
plural shall be read as the singular and the singular as the plural.
SECTION 11. Approval of Shareholders.
The Plan shall take effect on the date it is adopted by the Board of
Directors. However, if this Plan is not approved by the holders of a majority of
the outstanding shares of common stock, no par value, of the Corporation, within
the period beginning twelve (12) months before and ending twelve (12) months
after the date the plan is adopted by the Board of Directors, none of the
Options granted hereunder shall constitute Incentive Options.