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EXHIBIT 10.1
NPRI, INC.
1995 EMPLOYEE STOCK OPTION PLAN
The proper execution of the duties and responsibilities of the
executives, officers and other key employees of NPRI, Inc. and its subsidiaries
and certain non-employees and consultants as determined by the Board of
Directors is a vital factor in the continued growth and success of the Company.
Toward this end, it is necessary to attract, motivate and retain effective and
capable employees, non-employees and consultants at all levels of the Company to
assume positions which contribute materially to the successful operation of the
business of the Company. It benefits the Company to bind the interests of these
persons more closely to its own interest by offering them options to purchase
shares of common stock of the Company and thereby provide them with added
incentive to remain in its employ, or non-employees and consultants and to
increase its prosperity and growth.
ARTICLE 1
DEFINITIONS
The following words and terms, unless the context clearly indicates
otherwise, have the following meanings. Where appropriate in the context of this
Stock Option Plan, the singular shall include the plural, the masculine gender
shall include the feminine, and vice versa:
1:01 "Board" means the Board of Directors of NPRI, Inc.
1:02 "Committee" means the stock option committee consisting of three
(3) or more disinterested directors as more specifically described in Section
3:01.
1:03 "Common Stock" means the common stock of NPRI, Inc.
1:04 "Company" means NPRI, Inc. and any subsidiary thereof.
1:05 "Option" means the options granted pursuant to this Plan.
1:06 "Option Agreement" means an agreement provided for in Section
6:01.
1:07 "Participant" means an individual designated pursuant to Section
3:03 who has executed an Option Agreement.
1:08 "Permanent Disability" means the inability of an individual to
engage in any substantial gainful activity by reason of any
medically-determinable physical or
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mental impairment which can be expected to result in death or which has lasted
or can be expected to last for a continuous period of not less than 12 months.
1:09 "Plan" means this NPRI 1995 Employee Stock Option Plan.
1:10 "Plan Administrator" means the Committee appointed by the Board.
1:11 "SEC" means the United States Securities and Exchange Commission.
1:12 "Vesting" means 20% per year for each year.
ARTICLE 2
EFFECTIVE DATE OF THE PLAN
2:01 On _________________, the Board adopted this Plan subject to
approval by the Shareholders. The Plan shall become effective at the next
Special Meeting of Shareholders, provided it is approved by a majority of the
Shareholders of the Company at that time. No Options granted prior to
Shareholder approval of the Plan shall be exercisable unless and until the
Shareholders of the Company approve this Plan and the Options granted prior to
such approval.
ARTICLE 3
ADMINISTRATION
3:01 The Plan shall be administered by a stock option committee (the
"Committee") consisting of not less than three (3) directors who shall each be
"disinterested persons" as no member of the Committee shall (i) be eligible to
receive Option awards under this plan, or (ii) have been awarded or granted
equity securities under the Plan or any other plan of the Company during the
period of one year prior to serving on the Committee except as may be permitted
in the SEC's Rule 16b-3(c)(2)(i). The Board may, from time to time, remove
members from or add members to the Committee. Vacancies in the Committee,
however caused, shall be filled by the Board. The Committee shall select one of
its members chairman and shall hold meetings at such times and places as it may
determine. The Committee may appoint a secretary and, subject to the provisions
of the Plan and to policies determined by the Board, may make such rules and
regulations for the conduct of its business as it shall deem advisable.
3:02 The Committee shall establish from time to time, subject to the
limitations of the Plan as hereinafter set forth, such rules and regulations,
and amendments thereof,
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as it deems necessary to comply with applicable law and regulation and for the
proper administration of the Plan. Every decision and action of the Committee
shall be valid if approved by (i) a majority of the Committee members then in
office at a meeting, or (ii) all of the Committee members then in office by
unanimous written consent in lieu of meeting.
3:03 The Committee shall make all determinations as to the persons
except the non-employees and consultants (including officers and key employees)
who in the opinion of the Committee should receive Options. The Committee shall
also designate the time or times at which Options are granted, the number of
shares for which Options are to be granted to each person, and the term and
price of each Option. No member of the Board or the Committee shall be liable
for any action or determination made in good faith with respect to the Plan or
any Option. The Board shall determine the amount of options, if any, to be given
to non-employees and consultants and the terms of vesting and any other material
conditions pertaining to such options. After the action of the Board, the
administration of those options shall be done by the Committee.
3:04 Options shall be granted only after prior designation by the
Committee and the execution of an Option Agreement. Vesting shall be 20% per
year. The Board or a committee by the Board which could be this committee shall
have the flexibility to grant options under different terms and conditions for
exemplary performance or extraordinary efforts or other criteria for those who
may or could be eligible under this Plan. The Committee shall report to the
Secretary of the Company the names of persons granted Options, the number of
Options granted, and the terms and conditions of each Option.
ARTICLE 4
PARTICIPATION IN THE PLAN
4:01 Participation in the Plan shall be limited to full-time officers
and employees, non-employees and consultants of the Company as the case may be
who, from time to time, shall be designated by the Board or the Committee in
accordance with Section 3:03.
ARTICLE 5
STOCK SUBJECT TO PLAN
5:01 There are reserved for the granting of Options under the Plan, and
for subsequent issuance and sale pursuant to granted Options, of up to Four
Hundred Thirty Thousand Seven Hundred Eight (430,708) shares which is the
equivalent of 7.5% of the common stock on a fully diluted basis less any shares
issued under the 1995 Incentive Stock Option Plan of unissued by authorized
Common Stock or of Common Stock held
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in treasury. The combination of this Option Plan and Stock Option Plan has a
maximum number of shares of Four Hundred Thirty Thousand Seven Hundred Eight
(430,708) which is the equivalent of 7.5% of the common stock on a fully diluted
basis. If for any reason shares for which an Option has been granted lapses and
is not subject to purchase thereunder, those shares shall be available for the
granting of Options.
5:02 Proceeds of the purchase of optioned shares shall be used for the
general business purposes of the Company.
5:03 In the event of reorganization, recapitalization, stock split,
stock dividend, stock combination, merger, consolidation, acquisition of
property or stock, any change in the capital structure of the Company, or
similar changes in the Company's Common Stock, the Committee shall make such
adjustments as may be appropriate in the number and kind of shares reserved for
purchase and in the number, kind and price of shares covered by Options granted
but not then exercised; provided, however, that any Options to purchase
fractional shares resulting from any such adjustment shall be eliminated.
5:04 If the Company shall at any time merge or consolidate with or into
another corporation and (i) the Company is not the surviving entity, or (ii) the
Company is the surviving entity and the shareholders of the Company are required
to exchange their shares of Common Stock for property and/or securities, the
holder of each Option will thereafter receive, upon the exercise thereof, the
securities and/or property to which a holder of the number of shares of Common
Stock then deliverable upon the exercise of such Option would have been entitled
upon such merger or consolidation, and the Company shall take such steps in
connection with such merger or consolidation as may be necessary to assure that
the provisions of this Plan shall thereafter be applicable, as nearly as
reasonably may be, in relation to any securities or property thereafter
deliverable upon the exercise of such Option, provided, however, that under no
circumstance shall any Option exercise date be accelerated in contemplation of
such action. A sale of all or substantially all the assets of the Company for
consideration (apart from the assumption of obligations) consisting primarily of
securities shall be deemed a merger or consolidation for the foregoing purposes.
Notwithstanding the foregoing, the provisions of this Section 5:04 shall be
subject to Section 6:04.
The surviving entity following any reorganization may at any time,
in its sole discretion, tender substitute options as it may deem appropriate.
However, in no event may the substitute options entitle the Participant to any
fewer shares (or at any greater aggregate price) or any less other property than
the Participant would be entitled to under the immediately preceding paragraph
upon an exercise of the Options held prior to the substitution of the new
option.
5:05 In the event of the proposed dissolution or liquidation of the
Company, the Options granted hereunder shall terminate as of a date to be fixed
by the Committee, provided that not less than thirty (30) days prior written
notice of the date so fixed shall be given to the Participant, and the
Participant shall have the right, during the period of
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thirty (30) days preceding such termination, to exercise his Options.
Notwithstanding the foregoing, the provisions of this Section shall be subject
to Section 6:04.
ARTICLE 6
TERMS AND CONDITIONS OF OPTIONS
6:01 Each Option shall be evidenced by an Option Agreement specifying
the number of shares of Common Stock covered thereby in such form as the
Committee from time to time may determine, provided that no provision of the
Option Agreement shall be inconsistent with this Plan and such Option Agreement
may incorporate all or any of the terms of this Plan by reference.
6:02 The Option price per share shall not be less than 100% of the fair
market value of a share of the Common Stock on the date on which the Option is
granted. The Common Stock is not currently listed upon an established stock
exchange or traded in the over-the-counter market. Accordingly, until such time
as the Common Stock is listed upon an established stock exchange or traded in
the over-the-counter market, the fair market value of shares of the Common Stock
shall be determined in good faith by the Committee. When and if the Common Stock
is listed upon an established stock exchange or exchanges such fair market value
shall be deemed to be the highest closing price of the Common Stock on such
stock exchange or exchanges on the day the option is granted or if no sale of
the Common Stock shall have been made on any stock exchange on that day, on the
next preceding day on which there was a sale of such stock. When and if shares
of the Common Stock are traded in the over-the-counter market but not on an
established exchange or exchanges, the fair market value per share shall be the
mean between dealer "bid" and "asked" prices of the Common Stock as reported by
the National Association of Securities Dealers, Inc., on the day the option is
granted. Subject to the foregoing, the Committee in fixing the Option price
shall have full authority and discretion and be fully protected in doing so.
6:03 No Option may be granted under this Plan after December 31, 2000.
6:04 The term of any Option granted under this Plan shall be up to 5
years from the date on which it was granted. The Committee shall have the right
to set the time or times within which an Option shall be exercised, and to
accelerate the time or times of exercise; provided, however, that no Option
shall be exercisable until (i) after the Shareholders of the Company approve the
Plan; and (ii) at least six (6) months from the date of grant.
6:05 Each Option by its terms shall be non-transferable and
non-assignable except that valid Option rights may be transferred by
testamentary instrument (will), by the laws of descent and distribution, or
pursuant to a qualified domestic relations order as defined in the Internal
Revenue Code or Title I of the Employee Retirement Income
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Security Act or the rules thereunder. Otherwise, an Option is exercisable only
by such Participant.
6:06 Each Option granted under the Plan shall terminate and may no
longer be exercised if the Participant ceases to be an employee of the Company,
except that (i) if the Participant dies while in the employ of the Company, or
within two (2) months after the termination of such employment, or within six
(6) months if determined to be permanently disabled, such Option may be
exercised on his behalf as set forth in 6.07 below; and (ii) if the
Participant's employment shall have been terminated for any reason other than
his death, or permanent disability, he may at any time within a period of two
(2) months after such termination exercise such Option to the extent that the
Option was exercisable pursuant to Section 6.04 above by him on the date of the
termination of his employment; provided, however, that in the case of
termination for cause by the Company of the employment of the Participant or if
a Participant shall terminate his employment in violation of any employment
agreement with the Company, then his Option shall terminate and expire
concurrently with the termination of his employment and shall not thereafter be
exercisable to any extent. The definition of "cause" shall be as set forth in
the Option Agreement with each Participant.
6:07 If the Participant dies during the term of his Option while in the
employ of the Company, or within the two (2) month period after the termination
of employment or within six (6) months of becoming permanently disabled, without
having fully exercised his option, the executor or administrator of his estate
or the person who inherits the right to exercise the Option by bequest or
inheritance shall have the right within twelve (12) months after the
Participant's death to purchase the number of shares which the deceased
Participant was entitled to purchase at the date of his death, after which time
the Option shall lapse.
6:08 A Participant may, at any time, elect in writing to abandon an
Option or any part thereof.
ARTICLE 7
METHODS OF EXERCISE OF OPTION
7:01 The Participant (or other person acting under Section 6.07)
desiring to exercise an Option as to all or part of the shares of Common Stock
subject to that option shall notify the Secretary of the Company in writing at
its principal office to that effect, specifying the number of shares to be
purchased. The Committee shall have the right to set the time or times within
which each Option shall be exercisable, and to accelerate the time or times of
exercise. Unless the Option Agreement executed by a Participant expressly
otherwise provides, the Option shall be exercisable at any time or from time to
time after the expiration of one year from the date of grant and prior to
termination of the Option. Options must be exercised in multiples of 100 shares,
unless all Options theretofore granted are exercised at that time. An Option may
not be exercised to any
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extent, either by the Participant to whom it was granted, or by any person after
the Participant's death, unless the Participant to whom the Option was granted
has remained in the continuous employ of the Company, and/or of a subsidiary,
for not less than twelve (12) months from the date the Option was granted.
7:02 The notice shall be accompanied by payment to the Company of the
full purchase price or the Committee in its sole and absolute discretion may
accept an assignment of proceeds or funds or other similar documents from a
qualified brokerage company which trades on a national or regional exchange as a
financial institution. With the prior consent of the Company the Option may be
exercised as to the number of shares specified in the notice by tendering to the
Company shares of Common Stock already owned by the Participant which, together
with any cash tendered therewith shall equal in value the full purchase price.
The value of the tendered shares for this purpose shall be the fair market value
(as determined in accordance with the procedures set forth in Section 6:02) of
such shares (valued as if unlegended and freely transferable) on the date the
Participant executes and dates the notice provided in Section 7.01, and the
Participant shall deliver only that number of shares of Common Stock which,
together with any cash delivered, has an aggregate value of not less than the
full purchase price for the Option.
7:03 A Participant shall have none of the rights of a Stockholder until
the shares of Common Stock covered by the Option are issued to him. If the
shares of Common Stock issuable pursuant to the exercise of an Option are not
registered under the Securities Act of 1933, as amended, the Company may require
that the Participant deliver an investment representation letter at the time of
exercise in form acceptable to the Company and its counsel, and the Company may
place appropriate legends restricting transfer under applicable securities laws
on the certificates for the shares of Common Stock to be issued.
ARTICLE 8
AMENDMENTS AND DISCONTINUANCE OF THE PLAN
8:01 The Committee shall have the right at any time and from time to
time to amend, suspend, or terminate the Plan provided that, except as provided
in Section 5:03, no such amendment, suspension, or termination shall (i) revoke
or alter the terms of any valid Option previously granted in accordance with
this Plan; (ii) increase the number of shares to be reserved for issuance of
Options; (iii) change the price determined pursuant to the provisions of Section
6:02; (iv) change the class of eligible employees to whom Options may be granted
under this Plan; (v) extend the term of the Plan beyond five (5) years or
provide for options exercisable more than two (2) years after the date granted;
(vi) permit any member of the Committee to be eligible as a Participant; or
(vii) otherwise materially modify the Plan, except as provided herein or as
necessary to comply with applicable law, without Shareholder approval.
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8:02 This Plan shall terminate at midnight on December 31, 2001. Options
outstanding at the termination of the Plan shall not be affected by such
termination.
ARTICLE 9
MISCELLANEOUS PROVISIONS
9:01 The Plan shall be construed, whenever possible, to be in conformity
with the requirements of all applicable federal law, including without
limitation the SEC's Rule 16b-3. To the extent not in conflict with the
preceding sentence, the Plan shall be construed, administered and governed in
all respect under any by the laws of the State of Delaware, except where
preempted by federal law.
9:02 If any provision of the Plan is held invalid or unenforceable, the
invalidity or unenforceability shall not affect any other provisions and the
Plan shall be construed and enforced as if those provisions had not been
included.
9:03 This Plan shall be binding upon heirs, executors, administrators,
successors and assigns of all parties hereto, present and future.
9:04 The Plan shall not be deemed to constitute a contract between any
employee and the Company. Nothing in the Plan shall give any employee the right
to be retained in the employ of the Company, and all employees shall remain
subject to discharge, discipline or layoff to the same extent as if the Plan had
not been put into effect.
9:05 In addition to such other rights of indemnification as they may
have as directors or as members of the Committee, the members of the Committee
shall be indemnified by the Corporation against the reasonable expenses,
including attorney's fees actually and necessarily incurred in connection with
the defense of any action, suit, or proceeding, or in connection with any appeal
therein, to which they or any of them may be a party by reason of any action
taken or failure to act under or in connection with the Plan or any option
granted thereunder, and against all amounts paid by them in settlement thereof
(provided such settlement is approved by independent legal counsel selected by
the Corporation) or paid by them in satisfaction of a judgment in any such
action, suit, or proceeding, except in relation to matters as to which it shall
be adjudged in such action, suit, or proceeding that such Committee member is
liable for negligence or misconduct in performance of his duties; provided that
within 60 days after institution of any such action, suit, or proceeding a
Committee member shall in writing offer the Corporation the opportunity, at its
own expense, to handle and defend the same.
9:06 The Option Agreement shall provide the employee shall upon each
exercise of a part or all of the option granted represent a warrant that his
purchase of stock pursuant to such option is for investment only, and not with
the view of distribution
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involving a public offering unless such shares are provided for in such public
offering or such shares are registered. At any time the Board may waive the
requirement of such provision and any option agreement entered into under this
Plan.
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