EXHIBIT 10.1
CORVU CORPORATION
1996 STOCK OPTION PLAN
(AS AMENDED THROUGH JUNE 29, 2005)
SECTION 1.
DEFINITIONS
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As used herein, the following terms shall have the meanings indicated
below:
(a) "Affiliates" shall mean a Parent or Subsidiary of the Company.
(b) "Committee" shall mean a Committee of two or more directors who shall
be appointed by and serve at the pleasure of the Board. In the event the
Company's securities are registered pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended, each of the members of the
Committee shall be a "Non-Employee Director" within the meaning of Rule
16b-3, or any successor provision, as then in effect, of the General Rules
and Regulations under the Securities Exchange Act of 1934 as amended.
(c) The "Company" shall mean CorVu Corporation, a Minnesota corporation.
(d) "Fair Market Value" shall mean (i) if such stock is reported in the
national market system or is listed upon an established stock exchange or
exchanges, the reported closing price of such stock in such national
market system or on such stock exchange or exchanges on the date the
option is granted or, if no sale of such stock shall have occurred on that
date, on the next preceding day on which there was a sale of stock; (ii)
if such stock is not so reported in the national market system or listed
upon an established stock exchange, the average of the closing "bid" and
"asked" prices quoted by a recognized specialist in the Common Stock of
the Company on the date the option is granted, or if there are no quoted
"bid" and "asked" prices on such date, on the next preceding date for
which there are such quotes; or (iii) if such stock is not publicly traded
as of the date the option is granted, the per share value as determined by
the Board, in its sole discretion by applying principles of valuation with
respect to all such options.
(e) The "Internal Revenue Code" is the Internal Revenue Code of 1986, as
amended from time to time.
(f) "Option Stock" shall mean Common Stock of the Company (subject to
adjustment as described in Section 12) reserved for options pursuant to
this Plan.
(g) The "Optionee" for purposes of Section 9 is an employee of the Company
or any Subsidiary to whom an incentive stock option has been granted under
the Plan. For purposes of Section 10, the "Optionee" is the consultant or
advisor to or director, employee or officer of the Company or any
Subsidiary to whom a nonqualified stock option has been granted.
(h) "Parent" shall mean any corporation which owns, directly or indirectly
in an unbroken chain, fifty percent (50%) or more of the total voting
power of the Company's outstanding stock.
(i) The "Plan" means the CorVu Corporation 1996 Stock Option Plan, as
amended hereafter from time to time, including the form of Option
Agreements as they may be modified by the Board from time to time.
(j) A "Subsidiary" shall mean any corporation of which fifty percent (50%)
or more of the total voting power of outstanding stock is owned, directly
or indirectly in an unbroken chain, by the Company.
SECTION 2.
PURPOSE
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The purpose of the Plan is to promote the success of the Company and its
Subsidiaries by facilitating the employment and retention of competent personnel
and by furnishing incentive to officers, directors, employees, consultants, and
advisors upon whose efforts the success of the Company and its Subsidiaries will
depend to a large degree.
It is the intention of the Company to carry out the Plan through the
granting of stock options which will qualify as "incentive stock options" under
the provisions of Section 422 of the Internal Revenue Code and "nonqualified
stock options" pursuant to Section 10 of this Plan. The grant of all such
options shall, to the extent required, comply with Section 16(b) of the
Securities Exchange Act of 1934, the Internal Revenue Code, or any other
applicable law or regulation. Adoption of this Plan shall be and is expressly
subject to the condition of approval by the shareholders of the Company within
twelve (12) months after the adoption of the Plan by the Board of Directors. In
no event shall any stock options be exercisable prior to the date this Plan is
approved by the shareholders of the Company. If shareholder approval of this
Plan is not obtained within twelve (12) months after the adoption of the Plan by
the Board of Directors, any stock options previously granted shall be revoked.
SECTION 3.
EFFECTIVE DATE OF PLAN
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The Plan shall be effective upon its adoption by the Board of Directors of
the Company, subject to approval by the shareholders of the Company as required
in Section 2.
SECTION 4.
ADMINISTRATION
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The Plan shall be administered by the Board of Directors of the Company
(hereinafter referred to as the "Board") or by a Committee which may be
appointed by the Board from time to time. The Board or the Committee, as the
case may be, shall have all of the powers vested in it under the provisions of
the Plan, including but not limited to exclusive authority (where applicable and
within the limitations described herein) to determine, in its sole discretion,
whether an incentive stock option or nonqualified stock option shall be granted,
the individuals to whom, and the time or times at which, options shall be
granted, the number of shares subject to each option and the option price and
terms and conditions of each option. The Board, or the Committee, shall have
full power and authority to administer and interpret the Plan, to make and amend
rules, regulations and guidelines for administering the Plan, to prescribe the
form and conditions of the respective stock option agreements (which may vary
from Optionee to Optionee) evidencing each option and to make all other
determinations necessary or advisable for the administration of the Plan. The
Board's, or the Committee's, interpretation of the Plan, and all actions taken
and determinations made by the Board or the Committee pursuant to the power
vested in it hereunder, shall be conclusive and binding on all parties
concerned. No member of the Board or the Committee shall be liable for any
action taken or determination made in good faith in connection with the
administration of the Plan.
In the event the Board appoints a Committee as provided hereunder, any
action of the Committee with respect to the administration of the Plan shall be
taken pursuant to a majority vote of the Committee members or pursuant to the
written resolution of all Committee members.
SECTION 5.
PARTICIPANTS
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The Board or the Committee, as the case may be, shall from time to time,
at its discretion and without approval of the shareholders, designate those
employees, directors, officers, directors, consultants, and advisors of the
Company or of any Subsidiary to whom nonqualified stock options shall be granted
under this Plan; provided, however, that consultants or advisors shall not be
eligible to receive stock options hereunder unless such consultant or advisor
renders bona fide services to the Company or Subsidiary and such services are
not in connection with the offer or sale of securities in a capital raising
transaction. The Board or the Committee, as the case may be, shall, from time to
time, at its discretion and without approval of the shareholders, designate
those employees of the Company or any Subsidiary to whom incentive stock options
shall be granted under this Plan. The Board or the Committee may grant
additional incentive stock options or nonqualified stock options under this Plan
to some or all participants then holding options or may grant options solely or
partially to new participants. In designating participants, the Board or the
Committee shall also determine the number of shares to be optioned to each such
participant. The Board may from time to time designate individuals as being
ineligible to participate in the Plan.
SECTION 6.
STOCK
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The Stock to be optioned under this Plan shall consist of authorized but
unissued shares of Option Stock. Eight Million (8,000,000) shares of Option
Stock shall be reserved and available for options under the Plan; provided,
however, that the total number of shares of Option Stock reserved for options
under this Plan shall be subject to adjustment as provided in Section 12 of the
Plan. In the event that any outstanding option under the Plan for any reason
expires or is terminated prior to the exercise thereof, the shares of Option
Stock allocable to the unexercised portion of such option shall continue to be
reserved for options under the Plan and may be optioned hereunder.
SECTION 7.
DURATION OF PLAN
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Incentive stock options may be granted pursuant to the Plan from time to
time during a period of ten (10) years from the effective date as defined in the
Plan. Nonqualified stock options may be granted pursuant to the Plan from time
to time after the effective date of the Plan and until the Plan is discontinued
or terminated by the Board.
SECTION 8.
PAYMENT
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Optionees may pay for shares upon exercise of options granted pursuant to
this Plan with cash, certified check, Common Stock of the Company valued at such
stock's then Fair Market Value as defined in Section 9(d) below, or such other
form of payment as may be authorized by the Board or the Committee. The Board or
the Committee may, in its sole discretion, limit the forms of payment available
to the Optionee and may exercise such discretion any time prior to the
termination of the Option granted to the Optionee or upon any exercise of the
Option by the Optionee.
SECTION 9.
TERMS AND CONDITIONS OF INCENTIVE STOCK OPTIONS
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Each incentive stock option granted pursuant to the Plan shall be
evidenced by a written stock option agreement (the "Option Agreement"). The
Option Agreement shall be in such form as may be approved from time to time by
the Board or Committee and may vary from Optionee to Optionee; provided,
however, that each Optionee and each Option Agreement shall comply with and be
subject to the following terms and conditions:
(a) Number of Shares and Option Price. The Option Agreement shall state
the total number of shares covered by the incentive stock option. To the
extent required to qualify the Option as an incentive stock option under
Section 422 of the Internal Revenue Code, or any successor provision, or
under the laws of or any other applicable law or regulation, the option
price per share shall not be less than one hundred percent (100%) of the
Fair Market Value of the Common Stock per share on the date the Board or
the Committee, as the case may be, grants the option; provided, however,
that if an Optionee owns stock possessing more than ten percent (10%) of
the total combined voting power of all classes of stock of the Company or
of its parent or any Subsidiary, the option price per share of an
incentive stock option granted to such Optionee shall not be less than one
hundred ten percent (110%) of the Fair Market Value of the Common Stock
per share on the date of the grant of the option. The Board or the
Committee, as the case may be, shall have full authority and discretion in
establishing the option price and shall be fully protected in so doing.
(b) Term and Exercisability of Incentive Stock Option. The term during
which any incentive stock option granted under the Plan may be exercised
shall be established in each case by the Board or the Committee, as the
case may be. To the extent required to qualify the Option as an incentive
stock option under Section 422 of the Internal Revenue Code, or any
successor provision, or any other applicable law or regulation, in no
event shall any incentive stock option be exercisable during a term of
more than ten (10) years after the date on which it is granted; provided,
however, that if an Optionee owns stock possessing more than ten percent
(10%) of the total combined voting power of all classes of stock of the
Company or of its parent or any Subsidiary, the incentive stock option
granted to such Optionee shall be exercisable during a term of not more
than five (5) years after the date on which it is granted. The Option
Agreement shall state when the incentive stock option becomes exercisable
and shall also state the maximum term during which the option may be
exercised. In the event an incentive stock option is exercisable
immediately, the manner of exercise of the option in the event it is not
exercised in full immediately shall be specified in the Option Agreement.
The Board or the Committee, as the case may be, may accelerate the
exercise date of any incentive stock option granted hereunder which is not
immediately exercisable as of the date of grant.
(c) Other Provisions. The Option Agreement authorized under this Section 9
shall contain such other provisions as the Board or the Committee, as the
case may be, shall deem advisable. Any such Option Agreement shall contain
such limitations and restrictions upon the exercise of the option as shall
be necessary to ensure that such option will be considered an "incentive
stock option" as defined in Section 422 of the Internal Revenue Code or to
conform to any change therein.
SECTION 10.
TERMS AND CONDITIONS OF NONQUALIFIED STOCK OPTIONS
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Each nonqualified stock option granted pursuant to the Plan shall be
evidenced by a written Option Agreement. The Option Agreement shall be in such
form as may be approved from time to time by the Board or the Committee and may
vary from Optionee to Optionee; provided, however, that each Optionee and each
Option Agreement shall comply with and be subject to the following terms and
conditions:
(a) Number of Shares and Option Price. The Option Agreement shall state
the total number of shares covered by the nonqualified stock option.
Unless otherwise determined by the Board or the Committee, as the case may
be, the option price per share shall be one hundred percent (100%) of the
Fair Market Value of the Common Stock per share on the date the Board or
the Committee grants the option.
(b) Term and Exercisability of Nonqualified Stock Option. The term during
which any nonqualified stock option granted under the Plan may be
exercised shall be established in each case by the Board or the Committee,
as the case may be. The Option Agreement shall state when the nonqualified
stock option becomes exercisable and shall also state the maximum term
during which the option may be exercised. In the event a nonqualified
stock option is exercisable immediately, the manner of exercise of the
option in the event it is not exercised in full immediately shall be
specified in the stock option agreement. The Board or the Committee, as
the case may be, may accelerate the exercise date of any nonqualified
stock option granted hereunder which is not immediately exercisable as of
the date of grant.
(c) Withholding. The Company or a Subsidiary, as the case may be, shall be
entitled to withhold and deduct from future wages of the Optionee all
legally required amounts necessary to satisfy any and all withholding and
employment-related taxes attributable to the Optionee's exercise of a
nonqualified stock option. In the event the Optionee is required under the
Option Agreement to pay the Company, or make arrangements satisfactory to
the Company respecting payment of, such withholding and employment-related
taxes, the Board or Committee, as the case may be, may, in its discretion
and pursuant to such rules as it may adopt, permit the Optionee to satisfy
such obligation, in whole or in part, by delivering shares of the
Company's Common Stock or by electing to have the Company withhold shares
of Common Stock otherwise issuable to the Optionee having a Fair Market
Value equal to the minimum required tax withholding, based on the minimum
statutory withholding rates for federal and state tax purposes, including
payroll taxes, that are applicable to the supplemental income resulting
from the exercise of the nonqualified stock option. In no event may the
Company withhold shares having a Fair Market Value in excess of such
statutory minimum required tax withholding. The Optionee's election to
have shares withheld for this purpose shall be made on or before the date
the option is exercised or, if later, the date that the amount of tax to
be withheld is determined under applicable tax law. Such election shall be
approved by the Board or Committee, as the case may be, and otherwise
comply with such rules as the Board or Committee may adopt to assure
compliance with Rule 16b-3, or any successor provision, as then in effect,
of the General Rules and Regulations under the Securities Exchange Act of
1934, if applicable.
(d) Other Provisions. The Option Agreement authorized under this Section
10 shall contain such other provisions as the Board, or the Committee, as
the case may be, shall deem advisable.
SECTION 11
TRANSFER OF OPTION
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No incentive stock option shall be transferable, in whole or in part, by
the Optionee other than by will or by the laws of descent and distribution and,
during Optionee's lifetime, such option may be exercised only by the Optionee.
If the Optionee shall attempt any transfer of any incentive stock option granted
under the Plan during the Optionee's lifetime, such transfer shall be void and
the incentive stock option, to the extent not fully exercised, shall terminate.
The Board or Committee, as the case may be, may, in its sole discretion,
permit the Optionee to transfer any or all nonqualified stock options to any
member of the Optionee's "immediate family" as such term is defined in Rule
16a-1(e) promulgated under the Securities Exchange Act of 1934, or any successor
provision, or to one or more trusts whose beneficiaries are members of such
Optionee's "immediate family" or partnerships in which such family members are
the only partners; provided, however, that the Optionee cannot receive any
consideration for the transfer and such transferred nonqualified stock option
shall continue to be subject to the same terms and conditions as were applicable
to such nonqualified stock option immediately prior to its transfer.
SECTION 12.
RECAPITALIZATION, SALE, MERGER, EXCHANGE
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OR LIQUIDATION
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In the event of an increase or decrease in the number of shares of Common
Stock resulting from a subdivision or consolidation of shares or the payment of
a stock dividend or any other increase or decrease in the number of shares of
Common Stock effected without receipt of consideration by the Company, the
number of shares of Option Stock reserved under Section 6 hereof and the number
of shares of Option Stock covered by each outstanding option and the price per
share thereof shall be adjusted by the Board to reflect such change. Additional
shares which may be credited pursuant to such adjustment shall be subject to the
same restrictions as are applicable to the shares with respect to which the
adjustment relates.
Unless otherwise provided in the stock option agreement, in the event of
the sale by the Company of substantially all of its assets and the consequent
discontinuance of its business, or in the event of a merger, consolidation,
exchange, reorganization, reclassification, extraordinary dividend, divestiture
(including a spin-off) or liquidation of the Company (collectively referred to
as a "transaction"), the Board may provide for one or more of the following:
(a) the equitable acceleration of the exercisability of any outstanding
options hereunder;
(b) the complete termination of this Plan and cancellation of outstanding
options not exercised prior to a date specified by the Board (which date
shall give Optionees a reasonable period of time in which to exercise the
options prior to the effectiveness of such transaction);
(c) that Optionees holding outstanding incentive or nonqualified options
shall receive, with respect to each share of Option Stock subject to such
options, as of the effective date of any such transaction, cash in an
amount equal to the excess of the Fair Market Value of such Option Stock
on the date immediately preceding the effective date of such transaction
over the option price per share of such options; provided that the Board
may, in lieu of such cash payment, distribute to such Optionees shares of
stock of the Company or shares of stock of any corporation succeeding the
Company by reason of such transaction, such shares having a value equal to
the cash payment herein; or
(d) the continuance of the Plan with respect to the exercise of options
which were outstanding as of the date of adoption by the Board of such
plan for such transaction and provide to Optionees holding such options
the right to exercise their respective options as to an equivalent number
of shares of stock of the corporation succeeding the Company by reason of
such transaction.
The Board may restrict the rights of or the applicability of this Section 13 to
the extent necessary to comply with Section 16(b) of the Securities Exchange Act
of 1934, the Internal Revenue Code, or any other applicable law or regulation.
The grant of an option pursuant to the Plan shall not limit 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, exchange or
consolidate or to dissolve, liquidate, sell or transfer all or any part of its
business or assets.
SECTION 13.
INVESTMENT PURPOSE
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No shares of Common Stock shall be issued pursuant to the Plan unless and
until there has been compliance, in the opinion of Company's counsel, with all
applicable legal requirements, including without limitation, those relating to
securities laws and stock exchange listing requirements. As a condition to the
issuance of Option Stock to Optionee, the Board or Committee, as the case may
be, may require Optionee to (a) represent that the shares of Option Stock are
being acquired for investment and not resale and to make such other
representations as the Board or Committee shall deem necessary or appropriate to
qualify the issuance of the shares as exempt from the Securities Act of 1933 and
any other applicable securities laws, and (b) represent that Optionee shall not
dispose of the shares of Option Stock in violation of the Securities Act of 1933
or any other applicable securities laws.
As a further condition to the grant of any nonqualified stock option or
the issuance of Option Stock to Optionee, Optionee agrees to the following:
(a) In the event the Company advises Optionee that it plans an
underwritten public offering of its Common Stock in compliance with the
Securities Act of 1933, as amended, and the underwriter(s) seek to impose
restrictions under which certain shareholders may not sell or contract to
sell or grant any option to buy or otherwise dispose of part or all of
their stock purchase rights of the underlying Common Stock, Optionee will
not, for a period not to exceed 180 days from the prospectus, sell or
contract to sell or grant an option to buy or otherwise dispose of any
nonqualified stock option granted to Optionee pursuant to the Plan or any
of the underlying shares of Common Stock without the prior written consent
of the underwriter(s) or its representative(s).
(b) In the event the Company makes any public offering of its
securities and determines in its sole discretion that it is necessary to
reduce the number of issued but unexercised stock purchase rights so as to
comply with any states securities or Blue Sky law limitations with respect
thereto, the Board of Directors of the Company shall have the right (i) to
accelerate the exercisability of any nonqualified stock option and the
date on which such option must be exercised, provided that the Company
gives Optionee prior written notice of such acceleration, and (ii) to
cancel any options or portions thereof, in reverse chronological order
based on the date or dates on which such options or portions thereof would
have become exercisable according to the original vesting schedule set
forth in the related stock option agreements, which Optionee does not
exercise prior to or contemporaneously with such public offering.
(c) In the event of a transaction (as defined in Section 11 of the
Plan) which is treated as a "pooling of interests" under generally
accepted accounting principles, Optionee will comply with Rule 145 of the
Securities Act of 1933 and any other restrictions imposed under other
applicable legal or accounting principles if Optionee is an "affiliate"
(as defined in such applicable legal and accounting principles) at the
time of the transaction, and Optionee will execute any documents necessary
to ensure compliance with such rules.
The Company reserves the right to place a legend on any stock certificate
issued upon exercise of an option granted pursuant to the Plan to assure
compliance with this Section 13.
SECTION 14.
RIGHTS AS A SHAREHOLDER
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An Optionee (or the Optionee's successor or successors) shall have no
rights as a shareholder with respect to any shares covered by an 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 Section 12 of the Plan).
SECTION 15.
AMENDMENT OF THE PLAN
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The Board may from time to time, insofar as permitted by law, suspend or
discontinue the Plan or revise or amend it in any respect; provided, however,
that no such revision or amendment, except as is authorized in Section 12, shall
impair the terms and conditions of any option which is outstanding on the date
of such revision or amendment to the material detriment of the Optionee without
the consent of the Optionee. Notwithstanding the foregoing, no such revision or
amendment shall (i) materially increase the number of shares subject to the Plan
except as provided in Section 12 hereof, (ii) change the designation of the
class of employees eligible to receive options, (iii) decrease the price at
which options may be granted, or (iv) materially increase the benefits accruing
to Optionees under the Plan without the approval of the shareholders of the
Company if such approval is required for compliance with the requirements of the
Internal Revenue Code or any other applicable law or regulation. Furthermore,
the Plan may not, without the approval of the shareholders, be amended in any
manner that will cause incentive stock options to fail to meet the requirements
of Section 422 of the Internal Revenue Code, or any other applicable law or
regulation.
SECTION 16.
NO OBLIGATION TO EXERCISE OPTION
--------------------------------
The granting of an option shall impose no obligation upon the Optionee to
exercise such option. Further, the granting of an option hereunder shall not
impose upon the Company or any Subsidiary any obligation to retain the Optionee
in its employ for any period.