EMPLOYMENT AGREEMENT
This Employment Agreement dated effective as of August 31, 1996, is by
and among Nicollet Process Engineering, Inc., a Minnesota corporation located at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the
"Company") and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (the "Employee"), residing at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
A. The Employee is familiar with the Company's business and products.
B. The parties wish to provide for the employment of the Employee by
the Company.
C. The Employee wishes to receive compensation from the Company for the
Employee's services, and the Company desires reasonable protection of its
confidential business and technical information that has been acquired and is
being developed by the Company at substantial expense.
The Company and the Employee each intending to be legally bound, agree
as follows:
ARTICLE
1.
EMPLOYMENT
1.1 EMPLOYMENT. Subject to all of the terms and conditions of this
Agreement, the Company agrees to employ the Employee as its Chief
Technology Officer, and the Employee accepts such employment.
1.2 DUTIES. The Employee will devote a minimum of forty (40) hours per week
to, and, during such time, make the best use of his energy, knowledge
and training in advancing the Company's interests. The Employee will
diligently and conscientiously perform the duties of the Employee's
position within the general guidelines to be determined by the
Company's Chief Executive Officer. While the Employee is employed by
the Company, the Employee will keep the Company informed of any other
business activities or outside employment, and will promptly stop any
activity or employment that might conflict with the Company's interests
or adversely affect the performance of the Employee's duties for the
Company.
ARTICLE
2.
COMPENSATION
2.1 SALARY. The Company agrees to pay Employee a salary at a rate of
$100,000 per year, increased from time to time as the Chief Executive
Officer and the Board of Directors (the "Board"), in their sole
discretion, determine (the "Salary"). Such Salary shall be paid no less
often than semi-monthly in accordance with the standard payroll
practices of the Company.
2.2 ANNUAL BONUS.
(a) As additional compensation to the Employee, the Employee is
entitled to an annual bonus of one-third of one percent of the
amount of Net Sales that exceed the following thresholds
during the indicated fiscal year (the "Annual Bonus"):
Fiscal Year Ending Net Sales
------------------ ---------
August 31, 1997 $2,000,000
August 31, 1998 To be determined
August 31, 1999 To be determined
The Chief Executive Officer, in his sole discretion, will determine the
Net Sales goals or other threshold by which to measure the Annual Bonus for
fiscal years ending August 31, 1998 and August 31, 1999, such determination to
occur prior to the beginning of such fiscal year. The Annual Bonus is payable to
the Employee within sixty (60) days following the end of each fiscal year.
(b) For purposes of this Agreement, Net Sales means all gross
revenues received by the Company from the sales of its
products including license, royalty, consulting, maintenance
and installation fees less returns and discounts.
2.3 ADDITIONAL BONUS. If, during any Bonus Period (hereinafter defined),
the Company has Net Sales of at least $12 million, then, as additional
compensation to the Employee, the Employee is entitled to a bonus (the
"Additional Bonus") of 50% of the Employee's Salary in effect on the
last day of the Bonus Period (the "Measurement Date"). The Additional
Bonus is payable within sixty (60) days following the Measurement Date.
For purposes of this Agreement, the term "Bonus Period" means any
consecutive twelve (12) month period beginning on the first day of the
first month following the Measurement Date (or September 1, 1996 if no
Additional Bonus has been paid under this Section 2.3) and before the
Termination Date (hereinafter defined). The Annual Bonus and the
Additional Bonus are collectively referred to herein as the "Bonus."
2.4 OPTION GRANT. The Company hereby grants to the Employee non-qualified
options to purchase 75,000 shares (the "Options") of Company Common
Stock, at an exercise price equal to $2.75 per share on the terms and
subject to the conditions of the option agreement, in substantially the
form attached hereto as Exhibit A. The Options will become exercisable,
on a cumulative basis, with respect to 25,000 shares on each
anniversary of this agreement, beginning on August 31, 1997.
2.5 REIMBURSEMENT OF BUSINESS EXPENSES. The Company agrees to reimburse the
Employee for all reasonable out-of-pocket business expenses incurred by
the Employee on behalf of the Company, provided that the Employee
properly accounts to the Company for all such expenses in accordance
with the rules and regulations of the Internal Revenue Service under
the Internal Revenue Code of 1986, as amended and in accordance with
the standard policies of the Company relating to reimbursement of
business expenses.
2.6 BENEFITS AND VACATION. The Employee is entitled to participate in all
benefit plans adopted by the Company to the extent that the terms of
such benefit plans permit the Employee to participate. The Employee is
entitled to three weeks paid vacation and all legal holidays observed
by the Company, in each case, in accordance with the Company's policies
as in effect from time-to-time.
2.7 ADDITIONAL COMPENSATION. The Company and the Employee agree that the
Employee is entitled to additional compensation, whether in the form of
stock grants, options or cash, or a combination of both, as the Board
of Directors or the Chief Executive Officer in its or his sole
discretion, determine, provided however, that the Company is under no
obligation to provide any additional compensation to the Employee.
ARTICLE
3.
TERM AND TERMINATION
3.1 TERM. Subject to earlier termination in accordance with Section 2.2
below, this Agreement shall become effective on the date set forth
above and will have an initial term of three (3) years.
3.2 TERMINATION. Subject to the respective continuing obligations of the
Company and the Employee under Articles 4, 5 and 6 below:
(a) The Company may terminate this Agreement immediately on
written notice to the Employee for cause, including (without
limitation) fraud, misrepresentation, theft, embezzlement of
assets of the Company or breach of any provision of this
Agreement;
(b) This Agreement will terminate upon Employee's death or upon
written notice from the Company in the event of Employee's
"permanent disability" (the term "permanent disability" means
the occurrence of an event which constitutes permanent and
total disability within the meaning of Section 22(e)(3) of the
Internal Revenue Code of 1986, as amended);
(c) This Agreement may be terminated by either the Company or the
Employee without cause upon thirty (30) days prior written
notice to the other party; and
(d) This Agreement will terminate upon mutual written consent of
the Company and the Employee such termination being effective
on the date agreed to between the Company and the Employee.
The date this Agreement is terminated is hereinafter referred to as the
Termination Date.
3.3 COMPENSATION UPON TERMINATION. If the Company terminates this Agreement
pursuant to paragraph (a) of Section 2.3, the Company shall be
obligated to pay the Employee only the Salary as may be due and owing
through the Termination Date and all other non-contingent compensation
earned and accrued up through the Termination Date which shall
specifically not include any Bonus payments. Such Salary will be paid
in one lump sum within ten business days of the Termination Date. If
this Agreement terminates pursuant to paragraphs (b), (c) or (d) of
Section 3.2, the Company will be obligated to pay the Employee (i)
Salary for six (6) months at the rate in effect on the Termination
Date; and (ii) all other non-contingent compensation earned and accrued
up through the Termination Date, including any Bonus payments. Such
Salary and non-contingent compensation shall be paid in one lump sum
within ten business days of the date of termination.
ARTICLE
4.
INVENTIONS
4.1 DEFINITION. "Inventions" as used in this Article 4, means any
inventions, discoveries, improvements and ideas (whether or not they
are in writing or reduced to practice) or works of authorship (whether
or not they can be patented or copyrighted) that the Employee makes,
authors, or conceives (either alone or with others) and that concern
directly affects the Company's business or the Company's present or
demonstrably anticipated future research or development and result from
any work the Employee performs for the Company.
4.2 OWNERSHIPOF INVENTIONS. The Employee agrees that all Inventions made by
the Employee during the term of this Agreement will be the Company's
sole and exclusive property. The Employee will, with respect to any
Invention:
(a) keep current, accurate, and complete records, which will
belong to the Company and be kept and stored on the Company's
premises;
(b) promptly and fully disclose the existence and describe the
nature of the Invention to the Company in writing (and without
request);
(c) assign (and the Employee does hereby assign) to the Company
all of the Employee's rights to the Invention, any
applications the Employee makes for patents or copyrights in
any country, and any patents or copyrights granted to the
Employee in any country; and
(d) acknowledge and deliver promptly to the Company any written
instruments, and perform any other acts necessary in the
Company's opinion to preserve property rights in the Invention
against forfeiture, abandonment or loss and to obtain and
maintain patents and/or copyrights on the Invention and to
vest the entire right and title to the Invention in the
Company.
The requirements of this Section 4.2 do not apply to an Invention for
which no equipment, software, supplies, facility or trade secret information of
the Company was used and which was developed entirely on Employee's own time,
and (i) which does not relate directly to the Company's business or to the
Company's actual or demonstrably anticipated research or development, or (ii)
which does not result from any work the Employee performed for the Company. The
Employee represents that, except as indicated on the attached Exhibit B, as of
the date of this Agreement, Employee has no rights under, and will make no
claims against the Company with respect to, any inventions, discoveries,
improvements, ideas or works of authorship which would be Inventions if made,
conceived, authored or acquired by the Employee during the term of this
Agreement. With respect to any obligations performed by the Employee under this
Section 4.2 following termination of this Agreement, the Company will pay or
reimburse all reasonable out-of-pocket expenses.
4.3 SURVIVABILITY. The obligations of this Article 4 will survive the
expiration or termination of this Agreement.
ARTICLE
5.
CONFIDENTIALITY
5.1 DEFINITION. "Confidential Information," as used in this Article 5,
means information that is not generally known and that is proprietary
to the Company or that the Company is obligated to treat as
proprietary. Any information that the Employee reasonably considers
Confidential Information, or that the Company treats as Confidential
Information, will be presumed to be Confidential Information (whether
the Employee or others originated it and regardless of how the Employee
obtained it).
5.2 PROHIBITION ON USE OF CONFIDENTIAL INFORMATION. Except as specifically
authorized by an authorized officer of the Company or by written
Company policies, the Employee will not, either during or after
employment by the Company, use or disclose Confidential Information to
any person who is not an employee of the Company. Upon termination of
this Agreement, the Employee will promptly deliver to the Company all
records and any compositions, articles, devices, apparatus and other
items that disclose, describe or embody Confidential Information or any
Invention, including all copies, reproductions and specimens of the
Confidential Information in Employee's possession, regardless of who
prepared them and will promptly deliver any other property of the
Company in Employee's possession, whether or not Confidential
Information.
ARTICLE
6.
NON-COMPETITION AGREEMENT
6.1 NON-COMPETE. During the period of this Agreement and for a further
period of one (1) year after termination of employment with the Company
for any reason, Employee will not, directly or indirectly, within the
United States, either for his own benefit or for the benefit of any
other person, firm or corporation whatsoever, other than the Company,
(i) directly engage in any commercial activity that competes with the
Company's business, as the Company has conducted it during the three
years before the Employee's employment with the Company ends, (ii)
serve any of the then-existing clients or customers of the Company, any
clients or customers that have had a relationship with the Company
during the preceding twelve (12) months, or any potential clients or
customers that were solicited by the Company during the preceding
twelve (12) months, or (iii) in any way interfere or attempt to
interfere with the Company's relationships with any of its current or
potential customers, or (iv) employ or attempt to employ any of the
Company's then employees on behalf of any other entity competing with
the Company. Notwithstanding the foregoing, it is understood that the
restrictions contained in this Article 6 will cease to be applicable to
any activity of the Employee from and after such time as the Company
(a) shall have ceased all business activities for a period of sixty
(60) days or (b) shall have made a decision through the Board not to
continue, or shall have ceased for a period of sixty (60) days, the
business activities with which such activity of Employee would be
competitive.
6.2 REMEDIES.Employee acknowledges that if he breaches this covenant, the
Company will be irreparably and immeasurably injured. Therefore,
Employee agrees that in addition to any other remedies available to the
Company, the Company may apply to a court of competent jurisdiction for
a temporary and/or permanent injunction and that such court may grant
such injunction to restrain and prohibit such breach by Employee.
6.3 NO ADDITIONAL COMPENSATION. In the event Employee's employment
terminates for any reason, no additional compensation shall be paid for
this non-competition obligation.
6.4 SURVIVAL. The obligations of this Article 6 survive the expiration or
termination of this Agreement.
ARTICLE
7.
MISCELLANEOUS
7.1 NO ADEQUATE REMEDY. The Employee understands that if the Employee fails
to fulfill his obligations under Articles 4, 5 or 6 of this Agreement,
the damages to the Company would be very difficult to determine.
Therefore, in addition to any rights or remedies available to the
Company at law, in equity, or by statute, the Employee hereby consents
to the specific enforcement of Articles 4, 5 and 6 of this Agreement by
the Company through an injunction or restraining order issued by an
appropriate court.
7.2 CONSENT TO USE OF NAME. The Employee consents to the use of his name in
appropriate Company materials such as, but not limited to, offering
memoranda related to financing activities of the Company.
7.3 NO CONFLICTS. The Employee represents and warrants to the Company that
neither the entering into of this Agreement nor the performance of any
obligations hereunder will conflict with or constitute a breach under
any obligation of the Employee, as the case may be, under any agreement
or contract to which the Employee is a party or any other obligation by
which the Employee is bound. Without limiting the foregoing, the
Employee agrees that at no time will the Employee use any trade secrets
or other intellectual property of any third party while performing
services hereunder.
7.4 SUCCESSORS AND ASSIGNS. This Agreement is binding on and inures to the
benefit of the Company's successors and assigns; provided however, that
the Company may assign the Agreement only in connection with a merger,
consolidation, assignment, sale or other disposition or substantially
all of its assets or business. This Agreement is also binding on the
Employee's heirs, successors, assigns and legal representatives.
7.5 MODIFICATION. This Agreement may be modified or amended only by a
writing signed by the Company and the Employee.
7.6 GOVERNING LAW. The laws of Minnesota will govern the validity,
construction, and performance of this Agreement. Any legal proceeding
related to this Agreement will be brought in an appropriate Minnesota
court, and the Company and the Employee hereby consent to the exclusive
jurisdiction of that court for this purpose.
7.7 CONSTRUCTION. Whenever possible, each provision of this Agreement will
be interpreted so that it is valid under the applicable law. If any
provision of this Agreement is to any extent declared invalid by a
court of competent jurisdiction under the applicable law, that
provision will remain effective to the extent not declared invalid. The
remainder of this Agreement also will continue to be valid, and the
entire Agreement will continue to be valid in other jurisdictions.
7.8 WAIVERS. No failure or delay by the Company or the Employee in
exercising any right or remedy under this Agreement will waive any
provision of the Agreement. Nor will any single or partial exercise by
either the Company or the Employee of any right or remedy under this
Agreement preclude either of them from otherwise or further exercising
these rights or remedies, or any other rights or remedies granted by
any law or any related document.
7.9 ENTIRE AGREEMENT. This Agreement supersedes all previous and
contemporaneous oral negotiations, commitments, writings and
understandings between the parties concerning the matters in this
Agreement, including without limitation any policy or personnel manuals
of the Company.
7.10 NOTICES. All notices and other communications required or permitted
under this Agreement shall be in writing and sent by registered
first-class mail, postage prepaid, and shall be effective five days
after mailing to the addresses stated at the beginning of this
Agreement. These addresses may be changed at any time by like notice.
IN WITNESS WHEREOF, the Company and the Employee have executed this Agreement as
of the date first above written.
NICOLLET PROCESS ENGINEERING, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: President and Chief Executive Officer
EMPLOYEE
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
EXHIBIT A
NON-STATUTORY STOCK OPTION AGREEMENT
THIS AGREEMENT is entered into and effective as of August 31, 1996 (the
"Date of Grant"), by and between Nicollet Process Engineering, Inc. (the
"Company") and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (the "Optionee").
A. The Company has adopted the 1995 Amended and Restated Stock
Incentive Plan (the "1995 Plan") authorizing the Board of Directors of the
Company, or a committee as provided for in the 1995 Plan (the Board or such a
committee to be referred to as the "Committee"), to grant non-statutory stock
options to employees and nonemployee directors, consultants and independent
contractors of the Company.
B. The Company desires to give the Optionee an inducement to acquire a
proprietary interest in the Company and an added incentive to advance the
interests of the Company by granting to the Optionee an option to purchase
shares of common stock of the Company pursuant to the 1995 Plan.
Accordingly, the parties hereby agree as follows:
ARTICLE 1. GRANT OF OPTION.
The Company hereby grants to the Optionee the right, privilege, and
option (the "Option") to purchase Seventy-Five Thousand (75,000) shares (the
"Option Shares") of the Company's common stock, no par value (the "Common
Stock"), according to the terms and subject to the conditions set forth in this
Agreement and the 1995 Plan. The Option is not intended to be an "incentive
stock option," as that term is used in Section 422 of the Internal Revenue Code
of 1986, as amended (the "Code").
ARTICLE 2. OPTION EXERCISE PRICE.
The per share price to be paid by Optionee in the event of an exercise
of the Option shall be $__________________.
ARTICLE 3. DURATION OF OPTION AND TIME OF EXERCISE.
3.1 Initial Period of Exercisability. The Option shall become
exercisable, on a cumulative basis, with respect to one-third (1/3) of the
Option Shares on each of the first three anniversary dates of the Date of Grant.
The foregoing rights to exercise this Option shall be cumulative with respect to
the Option Shares becoming exercisable on each such date but in no event shall
this Option be exercisable after, and this Option shall become void and expire
as to all unexercised Option Shares at, 5:00 p.m. (Minneapolis, Minnesota time)
on August 30, 2006 (the "Time of Termination").
3.2 Termination of Employment or Other Service.
(a) In the event that the Optionee's employment or other service with
the Company and all Subsidiaries (as defined in the 1995 Plan) is terminated by
reason of the Optionee's death, Disability or Retirement (as such terms are
defined in the 1995 Plan), this Option shall remain exercisable to the extent
exercisable as of such termination for a period of one year after such
termination in the case of death or Disability and three months in the case of
Retirement (but in no event after the Time of Termination).
(b) In the event the Optionee dies within three months following
termination of employment or other service with the Company for any reason other
than "cause" (as defined in the 1995 Plan), then this Option shall remain
exercisable to the extent exercisable as of such termination for a period of one
year after such termination (but in no event after the Time of Termination).
(c) In the event the Optionee's employment or other service with the
Company and all Subsidiaries is terminated for any reason other than death,
Disability or Retirement, all rights of the Optionee under the 1995 Plan and
this Agreement shall immediately terminate without notice of any kind, and this
Option shall no longer be exercisable; provided, however, that if such
termination is due to any reason other than termination by the Company or any
Subsidiary for "cause" (as defined in the 1995 Plan), this Option shall remain
exercisable to the extent exercisable as of such termination for a period of
three months after such termination (but in no event after the Time of
Termination).
(d) Notwithstanding anything in this Agreement or the 1995 Plan to the
contrary, in the event that an Optionee materially breaches the terms of any
confidentiality or non-compete agreement entered into with the Company or any
Subsidiary, whether such breach occurs before or after termination of such
Optionee's employment or other service with the Company or any Subsidiary, the
Committee in its sole discretion may immediately terminate all rights of the
Optionee under this Agreement and the 1995 Plan without notice of any kind.
ARTICLE 4. MANNER OF OPTION EXERCISE.
4.1 Notice. This Option may be exercised by the Optionee in whole or in
part from time to time, subject to the conditions contained in the 1995 Plan and
herein, by delivery, in person or by registered mail, to the Company at its
principal executive office in Minneapolis, Minnesota (Attention: Chief Financial
Officer), of a written notice of exercise. Such notice shall be in a form
satisfactory to the Committee, shall identify the Option, shall specify the
number of Option Shares with respect to which the Option is being exercised, and
shall be signed by the person or persons so exercising the Option. Such notice
shall be accompanied by payment in full of the total purchase price of the
Option Shares purchased. In the event that the Option is being exercised, as
provided by the 1995 Plan and Section 3.2 above, by any person or persons other
than the Optionee, the notice shall be accompanied by appropriate proof of right
of such person or persons to exercise the Option. As soon as practicable after
the effective exercise of the Option, the Optionee shall be recorded on the
stock transfer books of the Company as the owner of the Option Shares purchased,
and the Company shall deliver to the Optionee one or more duly issued stock
certificates evidencing such ownership.
4.2 Investment Purpose. The Company shall not be required to issue or
deliver any shares of Common Stock under this Option unless (1)(a) such shares
are covered by an effective and current registration statement under the
Securities Act of 1933 and applicable state securities laws or (b) if the
Committee has determined not to so register such shares, exemptions from
registration under the Securities Act of 1933 and applicable state securities
laws are available for such issuance (as determined by counsel to the Company)
and the Company has received from the Optionee (or, in the event of death or
disability, the Optionee's heir(s) or legal representative(s)) any
representations or agreements requested by the Company in order to permit such
issuance to be made pursuant to such exemptions, and (2) the Company has
obtained any other consent, approval or permit from any state or federal
governmental agency which the Committee shall, in its sole discretion upon the
advice of counsel, deem necessary or advisable. In the event that, at the time
of the attempted exercise of this Option, any of these conditions to the
issuance of a certificate for shares of Common Stock have not been satisfied,
such exercise shall be deemed withdrawn and the Company shall return any
payments made with respect thereto unless the Optionee, within 15 days after
being informed of the nonsatisfaction of such conditions, gives the Company
written notice that he or she wants such exercise to remain suspended (in which
event such exercise shall be deemed to be effective on the earliest date upon
which such conditions have been satisfied). Unless a registration statement
under the Securities Act of 1933 is in effect with respect to the issuance or
transfer of Option Shares, each certificate representing any such shares shall
be restricted by the Company as to transfer unless the Company receives an
opinion of counsel satisfactory to the Company to the effect that registration
under the Securities Act of 1933 and applicable state securities laws is not
required with respect to such transfer.
ARTICLE 5. NONTRANSFERABILITY.
Neither this Option nor the Option Shares acquired upon exercise may be
transferred by the Optionee, either voluntarily or involuntarily, or subjected
to any lien, directly or indirectly, by operation of law or otherwise, except as
provided in the 1995 Plan. Any attempt to transfer or encumber this Option or
the Option Shares other than in accordance with this Agreement and the 1995 Plan
shall be null and void and shall void this Option.
ARTICLE 6. LIMITATION OF LIABILITY.
Nothing in this Agreement shall be construed to (a) limit in any way
the right of the Company to terminate the employment or service of the Optionee
at any time, or (b) be evidence of any agreement or understanding, express or
implied, that the Company will retain the Optionee in any particular position,
at any particular rate of compensation or for any particular period of time.
ARTICLE 7. WITHHOLDING TAXES.
The Company is entitled to (a) withhold and deduct from future wages of
the Optionee (or from other amounts which may be due and owing to the Optionee
from the Company), or make other arrangements for the collection of, all legally
required amounts necessary to satisfy any federal, state or local withholding
and employment-related tax requirements attributable to the grant or exercise of
this Option or otherwise incurred with respect to this Option, or (b) require
the Optionee promptly to remit the amount of such withholding to the Company
before acting on the Optionee's notice of exercise of this Option. In the event
that the Company is unable to withhold such amounts, for whatever reason, the
Optionee hereby agrees to pay to the Company an amount equal to the amount the
Company would otherwise be required to withhold under federal, state or local
law.
ARTICLE 8. ADJUSTMENTS.
In the event of any reorganization, merger, consolidation,
recapitalization, liquidation, reclassification, stock dividend, stock split,
combination of shares, rights offering, extraordinary dividend or divestiture
(including a spin-off) or any other change in the corporate structure or shares
of the Company, the Committee (or, if the Company is not the surviving
corporation in any such transaction, the board of directors of the surviving
corporation), in order to prevent dilution or enlargement of the rights of the
Optionee, shall make appropriate adjustment (which determination shall be
conclusive) as to the number, kind and exercise price of securities subject to
this Option.
ARTICLE 9. SUBJECT TO 1995 PLAN.
The Option and the Option Shares granted and issued pursuant to this
Agreement have been granted and issued under, and are subject to the terms of,
the 1995 Plan. The terms of the 1995 Plan are incorporated by reference herein
in their entirety, and the Optionee, by execution hereof, acknowledges having
received a copy of the 1995 Plan. The provisions of this Agreement shall be
interpreted as to be consistent with the 1995 Plan, and any ambiguities herein
shall be interpreted by reference to the 1995 Plan. In the event that any
provision hereof is inconsistent with the terms of the 1995 Plan, the terms of
the 1995 Plan shall prevail.
ARTICLE 10. MISCELLANEOUS.
10.1 Binding Effect. This Agreement shall be binding upon the heirs,
executors, administrators and successors of the parties hereto.
10.2 Governing Law. This Agreement and all rights and obligations
hereunder shall be construed in accordance with the 1995 Plan and governed by
the laws of the State of Minnesota.
10.3 Entire Agreement. This Agreement and the 1995 Plan set forth the
entire agreement and understanding of the parties hereto with respect to the
grant and exercise of this Option and the administration of the 1995 Plan and
supersede all prior agreements, arrangements, plans and understandings relating
to the grant and exercise of this Option and the administration of the 1995
Plan.
10.4 Amendment and Waiver. Other than as provided in the 1995 Plan,
this Agreement may be amended, waived, modified or canceled only by a written
instrument executed by the parties hereto or, in the case of a waiver, by the
party waiving compliance.
The parties hereto have executed this Agreement effective the day and
year first above written.
NICOLLET PROCESS ENGINEERING, INC.
By:__________________________________
Its__________________________________
[By execution hereof, the OPTIONEE
Optionee acknowledges having
received a copy of the 1995
Plan.] _____________________________________
EXHIBIT "B"
TO EMPLOYMENT AGREEMENT
Programs, algorithms, concepts and techniques, developed by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and
his companies, portions of which may be licensed to NPE, but still retained
by ▇▇▇▇▇▇.
"Auditor in a Briefcase (TM)" Hospital Billing Audit System
* Guided auditing system;
* Automated letter writing;
* Automated summary report generator.
"BoardReport" Report System for Bank Board of Directors
* Highly flexible report formatting and presentation systems.
"Business Object Engineering" Design Methodology
"Data HyperCube Engine" High-Performance Data System (work in progress since
1984)
* data compression and expansion
* data compaction and reconstruction
* data presentation which includes many features that would be useful
for NPE.
"HealthPack(TM)" Health Insurance Claims Administration System
Level I: for first-time, small TPA's using single PCs
Level II: for medium TPA's using networked PCs
Level III: for medium TPA's using IBM host computers
* Table-driven claims adjudication system;
* Accounting system;
* Reporting system;
* Dialable speed and options panel;
"Quality Pays(TM)" Activity Tracking System (work in progress since 1990)
* a drag-and-drop many-to-many relationship manager which enables a
user to selectively rearrange lists of equipment, people, tasks,
etc., freely assigning equipment to multiple people, people to
multiple task lists, and so forth, without extensive knowledge of
the workings of the data base manager;
* a semi-automatic "paperwork filler-outer";
* an automatic telephone call-maker;
"Quality Pays(TM)" Predictive Maintenance System (work in progress since 1990)
* "status-at-a-glance" plant floor summary
* a "learning" equipment usage estimating or recording system;
* a predictive maintenance system;
* a repair order generator;
* a repair order tracker;
* an information manager;
* a time accounting system;
* a time manager;
* an activity simulation and forecasting system.
"Quality Pays(TM)" Process Problem Tracking System (work in progress)
(built on work done 1980-1988)
* "status-at-a-glance" problem summary;
* an information and "hot tips" manager;
* a time accounting and billing system;
* a problem resolution and solution retrieval system;
* a problem tracking system.
"RealProp(TM)" Real Estate Brokerage Listing Management System,
* A property listing management system.
"SlotGuard(TM)"Real-Time Equipment Monitoring System,
* A real-time graphic depiction of a casino floor;
* "Status-at-a-glance" showing equipment performance over time;
* Real-time monitoring of equipment events;
* Digital signal monitoring and pattern recognition;
* Automated relay of key event data to remote monitors;
* A floor activity simulator; * Reconfigurable on-line by a customer
as the need arises;
* "Intelligent" report pre-preparation to slash delays An accounting
package;
* A marketing package;
* Equipment maintenance capabilities;
* N-tier Client/Server implementation;
* 1-second machine-to-network-to-machine performance;
"Smart" Nurse Staffing and Retention Systems
* A resource management and tracing system;
* A resource forecasting system;
* A resource scheduling system;
* A rules-and-time-schedule conflict identification system.
Many discrete process activity simulators, using various forms of information
presentation.
In the Course of his ongoing investigation into improving these systems, ▇▇.
▇▇▇▇▇▇ has developed proprietary techniques and algorithms necessary for
continual high-speed use of computer networks in monitoring discrete activities.
These include data encryption algorithms; data compaction and compression
algorithms and techniques; data staging; and data presentation methods. Some of
these are part of the "Data HyperCube Engine" noted above.
In developing high-speed presentation, review and retrieval capabilities, ▇▇.
▇▇▇▇▇▇ has evolved an approach which takes into account real-world human
perceptual limitations and characteristics. This has allowed his systems to
regularly exceed the perceived performance of competing systems.
SOFTWARE LICENSE AGREEMENT
This Agreement is made effective as of __________________________ and is
by and between ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, an individual residing at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Licensor") and Nicollet Process Engineering, Inc., a
Minnesota corporation, with its principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Company"). For
purposes of this Agreement, the term "Software" means the computer program,
algorithms, method or concepts described in the attached Exhibit A, all software
incorporated into the Software that is licensed from third parties and all
operator and user manuals, training materials and other materials provided to
the Company in connection with this Agreement.
1. SOFTWARE LICENSE. Licensor grants to the Company a non-terminable,
non-exclusive, transferable, fully-paid up license to use the source and object
code version of the Software according to the terms and conditions of this
Agreement, in any fashion the Company so chooses, including without limitation,
the right to use, make and distribute derivatives of the Software in any media.
Title to the Software, all copies thereof and all rights therein, including all
patents, copyrights and trade secrets, will remain vested in Licensor.
2. MAINTENANCE. No maintenance is to be provided under the terms and
conditions of this agreement.
3. DISCLAIMER OF WARRANTY FOR SOFTWARE. THE SOFTWARE IS LICENSED ON AN
"AS IS" BASIS. LICENSOR DISCLAIMS ALL WARRANTIES, WHETHER IMPLIED OR EXPRESS,
ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR MAKES NO
REPRESENTATIONS CONCERNING THE QUALITY OR PERFORMANCE OF THE SOFTWARE AND DOES
NOT WARRANT THAT THE SOFTWARE WILL BE ERROR FREE OR WILL OPERATE WITHOUT
INTERRUPTION.
4. PROTECTION OF SOFTWARE. The Company will keep in confidence and
protect the Software from disclosure to third parties and will restrict its use
as provided in this Agreement. The Company acknowledges that unauthorized
disclosure of the Software may cause substantial economic loss to the Licensor.
The Company will inform its employees, consultants and other agents of their
obligations under this Section and instruct them in a manner to ensure that such
obligations are met.
5. EXCLUSIVE AGREEMENT, GOVERNING LAW, JURISDICTION. This agreement,
together with that certain Employment Agreement dated effective as of August 31,
1996 between the Licensor and the Company, is the complete and exclusive
statement of agreement between the parties and supersedes all proposals,
communications, purchase orders and prior agreements, verbal or written between
the parties. This agreement is governed by the laws of the United States and the
State of Minnesota, without regard to the conflicts of laws provisions of any
jurisdictions. Any disputes arising under this Agreement will be subject to the
exclusive jurisdiction of the courts of the State of Minnesota, and each of the
parties consents to the exclusive jurisdiction of such courts for this purpose.
If any provision or portion of this agreement is invalid or unenforceable under
any applicable statute or rule of law, it is deemed to be omitted.
NICOLLET PROCESS ENGINEERING, INC. _________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By: _________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Chief Executive Officer
