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Exhibit 10.2
CASCADE MICROTECH, INC.
1993 STOCK INCENTIVE PLAN
AS AMENDED
(INCLUDING AMENDMENT AND RESTATEMENT OF THE
1986 NON-QUALIFIED STOCK OPTION PLAN)
1. PURPOSES OF THE PLAN. The purposes of this Stock Incentive
Plan are to attract and retain the best available personnel for positions of
substantial responsibility, to provide additional incentive to the Employees and
Consultants of the Company and to promote the success of the Company's business.
Options granted hereunder may be either "incentive stock options," as
defined in Section 422 of the Internal Revenue Code of 1986, as amended, or
"nonqualified stock options," at the discretion of the Board and as reflected in
the terms of the written option agreement. In addition, shares of the Company's
Common Stock may be Sold hereunder independent of any Option grant.
The Company's 1986 Non-Qualified Stock Option Plan (the "1986 Plan") is
hereby amended and restated in its entirety. All outstanding options granted
under the 1986 Plan shall be deemed Nonqualified Stock Options under this Plan
subject to the terms and conditions hereof.
2. DEFINITIONS. As used herein, the following definitions shall
apply:
(a) "BOARD" shall mean the Committee, if one has been
appointed, or the Board of Directors of the Company, if no Committee is
appointed.
(b) "CODE" shall mean the Internal Revenue Code of 1986,
as amended.
(c) "COMMON STOCK" shall mean the Common Stock of the
Company.
(d) "COMPANY" shall mean Cascade Microtech, Inc., an
Oregon corporation.
(e) "COMMITTEE" shall mean the Committee appointed by the
Board of Directors in accordance with paragraph (a) of Section 4 of the Plan, if
one is appointed.
(f) "CONSULTANT" shall mean any person who is engaged by
the Company or any Subsidiary to render consulting services and is compensated
for such consulting services and any director of the Company whether compensated
for such services or not.
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(g) "CONTINUOUS STATUS AS AN EMPLOYEE OR CONSULTANT"
shall mean the absence of any interruption or termination of service as an
Employee or Consultant. Continuous Status as an Employee or Consultant shall not
be considered interrupted in the case of sick leave, military leave, or any
other leave of absence approved by the Board; provided that such leave is for a
period of not more than ninety days or reemployment upon the expiration of such
leave is guaranteed by contract or statute.
(h) "EMPLOYEE" shall mean any person, including officers
and directors, employed by the Company or any Parent or Subsidiary of the
Company. The payment of a director's fee by the Company shall not be sufficient
to constitute "employment" by the Company.
(i) "INCENTIVE STOCK OPTION" shall mean an Option
intended to qualify as an incentive stock option within the meaning of Section
422 of the Code.
(j) "NONQUALIFIED STOCK OPTION" shall mean an Option not
intended to qualify as an incentive stock option within the meaning of Section
422 of the Code.
(k) "OPTION" shall mean a stock option granted pursuant
to the Plan.
(l) "OPTIONED STOCK" shall mean the Common Stock subject
to an Option.
(m) "OPTIONEE" shall mean an Employee or Consultant who
receives an Option.
(n) "PARENT" shall mean a "parent corporation," whether
now or hereafter existing, as defined in Section 425(e) of the Code.
(o) "PLAN" shall mean this Stock Incentive Plan.
(p) "SALE" or "SOLD" shall include, with respect to the
sale of Shares under the Plan, the sale of Shares for consideration in the form
of cash or notes, as well as a grant of Shares without consideration, except
past or future services.
(q) "SHARE" shall mean a share of the Common Stock, as
adjusted in accordance with Section 11 of the Plan.
(r) "SUBSIDIARY" shall mean a "subsidiary corporation,"
whether now or hereafter existing, as defined in Section 425(f) of the Code.
3. STOCK SUBJECT TO THE PLAN. Subject to the provisions of
Section 11 of the Plan, the maximum aggregate number of shares which may be
optioned and/or Sold under the Plan is 2,200,000 shares of Common Stock. The
Shares may be authorized, but unissued, or reacquired Common Stock.
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If an Option should expire or become unexercisable for any reason
without having been exercised in full, the unpurchased Shares which were subject
thereto shall, unless the Plan shall have been terminated, become available for
future Option grants and/or Sales under the Plan. If Shares Sold under the Plan
are repurchased by the Company pursuant to restrictions applicable to such
Shares, the number of Shares repurchased shall, unless the Plan shall have been
terminated, become available for future Option grants and/or Sales under the
Plan.
4. ADMINISTRATION OF THE PLAN.
(a) PROCEDURE. The Plan shall be administered by the
Board of Directors of the Company.
(i) Subject to subparagraph (ii), the Board of
Directors may appoint a Committee consisting of not less than three (3) members
of the Board of Directors to administer the Plan on behalf of the Board of
Directors, subject to such terms and conditions as the Board of Directors may
prescribe. Once appointed, the Committee shall continue to serve until otherwise
directed by the Board of Directors. From time to time the Board of Directors may
increase the size of the Committee and appoint additional members thereof,
remove members (with or without cause) and appoint new members in substitution
therefor, fill vacancies however caused, or remove all members of the Committee
and thereafter directly administer the Plan.
Members of the Board who are either eligible for Options and/or Sales
or have been granted Options or Sold Shares may vote on any matters affecting
the administration of the Plan or the grant of any Options or Sale of any Shares
pursuant to the Plan, except that no such member shall act upon the granting of
an Option or Sale of Shares to himself, but any such member may be counted in
determining the existence of a quorum at any meeting of the Board during which
action is taken with respect to the granting of Options or Sale of Shares to
him.
(ii) Notwithstanding the foregoing subparagraph
(i), if and in any event the Company registers any class of any equity security
pursuant to Section 12 of the Securities Exchange Act of 1934, from the
effective date of such registration until six (6) months after the termination
of such registration, any grants of options to officers or directors shall only
be made by the Board; provided, however, that if any member of the Board has
received an option grant or stock award under this Plan or any other stock
option or other stock plan of the Company, or any of its affiliates, at any time
within the preceding year, any grants of options to officers or directors must
be made by, or only in accordance with the recommendation of, a Committee
consisting of two or more persons, each of whom must be a member of the Board of
Directors of the Company, appointed by the Board and having full authority to
act in the matter, and none of whom has received any option grant or stock award
under this Plan or any other stock option or other stock plan of the Company, or
any of its affiliates at any time within the preceding year.
(b) POWERS OF THE BOARD. Subject to the provisions of the
Plan, the Board shall have the authority, in its discretion: (i) to grant
Incentive Stock Options in accordance with
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Section 422 of the Code, or nonqualified stock Options; (ii) to authorize Sales
of Shares of Common Stock hereunder; (iii) to determine, upon review of relevant
information and in accordance with Sec tion 8(b) of the Plan, the fair market
value of the Common Stock; (iv) to determine the exercise/purchase price per
share of Options to be granted or Shares to be Sold, which exercise/purchase
price shall be determined in accordance with Section 8(a) of the Plan; (v) to
determine the Employees or Consultants to whom, and the time or times at which,
Options shall be granted and the number of Shares to be represented by each
Option; (vi) to determine the Employees or Consultants to whom, and the time or
times at which, Shares shall be Sold and the number of Shares to be Sold; (vii)
to interpret the Plan; (viii) to prescribe, amend and rescind rules and
regulations relating to the Plan; (ix) to determine the terms and provisions of
each Option granted (which need not be identical) and, with the consent of the
holder thereof, modify or amend each Option; (x) to determine the terms and
provisions of each Sale of Shares (which need not be identical) and, with the
consent of the purchaser thereof, modify or amend each Sale; (xi) to accel erate
or defer (with the consent of the Optionee) the exercise date of any Option,
consistent with the provisions of Section 9 of the Plan; (xii) to accelerate or
defer (with the consent of the Optionee or purchaser of Shares) the vesting
restrictions applicable to Shares Sold under the Plan or pursuant to Options
granted under the Plan; (xiii) to authorize any person to execute on behalf of
the Company any instrument required to effectuate the grant of an Option or Sale
of Shares previously granted or authorized by the Board; (xiv) to determine the
restrictions on transfer, vesting restrictions, repurchase rights, or other
restrictions applicable to Shares issued under the Plan; (xv) to effect, at any
time and from time to time, with the consent of the affected Optionees, the
cancellation of any or all outstanding Options under the Plan and to grant in
substitution therefor new Options under the Plan covering the same or different
numbers of Shares, but having an Option price per Share con sistent with the
provisions of Section 8 of this Plan as of the date of the new Option grant; and
(xvi) to make all other determinations deemed necessary or advisable for the
administration of the Plan.
(c) EFFECT OF BOARD'S DECISION. All decisions,
determinations and interpretations of the Board shall be final and binding on
all Optionees and any other holders of any Options granted under the Plan or
Shares Sold under the Plan.
5. ELIGIBILITY.
(a) PERSONS ELIGIBLE. Options may be granted and/or
Shares Sold only to Employees and Consultants. Incentive Stock Options may be
granted only to Employees. An Employee or Consultant who has been granted an
Option or Sold Shares may, if he is otherwise eligible, be granted an additional
Option or Options or Sold additional Shares.
(b) ISO LIMITATION. No Incentive Stock Option may be
granted to an Employee which, when aggregated with all other Incentive Stock
Options granted to such Employee by the Company or any Parent or Subsidiary,
would result in Shares having an aggregate fair market value (determined for
each Share as of the date of grant of the Option covering such Share) in excess
of
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$100,000 becoming first available for purchase upon exercise of one or more
Incentive Stock Options during any calendar year.
(c) SECTION 5(b) LIMITATIONS. Section 5(b) of the Plan
shall apply only to an Incentive Stock Option evidenced by an "Incentive Stock
Option Agreement" which sets forth the intention of the Company and the Optionee
that such Option shall qualify as an Incentive Stock Option. Section 5(b) of the
Plan shall not apply to any Option evidenced by a "Nonqualified Stock Option
Agreement" which sets forth the intention of the Company and the Optionee that
such Option shall be a Nonqualified Stock Option.
(d) NO RIGHT TO CONTINUED EMPLOYMENT. The Plan shall not
confer upon any Optionee any right with respect to continuation of employment or
consulting relationship with the Company, nor shall it interfere in any way with
his right or the Company's right to terminate his employment or consulting
relationship at any time.
6. TERM OF PLAN. The Plan shall become effective upon the earlier
to occur of its adoption by the Board of Directors or its approval by the
stockholders of the Company as described in Section 17 of the Plan. It shall
continue in effect for a term of ten (10) years, unless sooner terminated under
Section 13 of the Plan.
7. TERM OF OPTION. The term of each Incentive Stock Option shall
be ten (10) years from the date of grant thereof or such shorter term as may be
provided in the Stock Option Agreement. The term of each Nonqualified Stock
Option shall be ten (10) years and one (1) day from the date of grant thereof or
such shorter term as may be provided in the Stock Option Agreement. However, in
the case of an Option granted to an Optionee who, at the time the Option is
granted, owns stock representing more than ten percent (10%) of the voting power
of all classes of stock of the Company or any Parent or Subsidiary, (a) if the
Option is an Incentive Stock Option, the term of the Option shall be five (5)
years from the date of grant thereof or such shorter time as may be provided in
the Stock Option Agreement, or (b) if the Option is a Nonqualified Stock Option,
the term of the Option shall be five (5) years and one (1) day from the date of
grant thereof or such shorter term as may be provided in the Stock Option
Agreement.
8. EXERCISE/PURCHASE PRICE AND CONSIDERATION.
(a) EXERCISE/PURCHASE PRICE. The per-Share
exercise/purchase price for the Shares to be issued pursuant to exercise of an
Option or a Sale (other than a Sale which is a grant for which no purchase price
is payable) shall be such price as is determined by the Board, but shall be
subject to the following:
(i) In the case of an Incentive Stock Option
(A) granted to an Employee who, at the
time of the grant of such Incentive Stock Option, owns stock representing more
than ten percent (10%) of the voting
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power of all classes of stock of the Company or any Parent or Subsidiary, the
per Share exercise price shall be no less than one hundred ten percent (110%) of
the fair market value per Share on the date of the grant.
(B) granted to any other Employee, the
per Share exercise price shall be no less than one hundred percent (100%) of the
fair market value per Share on the date of grant.
(ii) In the case of a Nonqualified Stock Option
or Sale.
(A) granted or Sold to a person who, at
the time of the grant of such Option or authorization of such Sale, owns stock
representing more than ten percent (10%) of the voting power of all classes of
stock of the Company or any Parent or Subsidiary, the per Share
exercise/purchase price shall be no less than one hundred ten percent (110%) of
the fair market value per Share on the date of the grant or authorization of
Sale.
(B) granted or Sold to any other
person, the per Share exercise/purchase price shall be no less than eighty-five
percent (85%) of the fair market value per Share on the date of grant or
authorization of Sale.
(iii) In the case of an Option granted or Sale
authorized on or after the effective date of registration of any class of equity
security of the Company pursuant to Section 12 of the Exchange Act and prior to
six (6) months after the termination of such registration, the per Share
exercise/purchase price shall be no less than one hundred percent (100%) of the
fair market value per Share on the date of grant or authorization of Sale.
(b) FAIR MARKET VALUE. The fair market value per Share
shall be determined by the Board in its discretion; provided, however, that
where there is a public market for the Common Stock, the fair market value per
Share shall be the mean of the bid and asked prices of the Common Stock for the
date of grant or authorization of Sale, as reported in THE WALL STREET JOURNAL
(or, if not so reported, as otherwise reported by the National Association of
Securities Dealers Automated Quotation (NASDAQ) System) or, in the event the
Common Stock is listed on a stock exchange (including NASDAQ), the fair market
value per Share shall be the closing price on such exchange on the date of grant
of the Option or authorization of Sale, as reported in THE WALL STREET JOURNAL.
(c) CONSIDERATION. The consideration to be paid for the
Shares to be issued upon exercise of an Option or pursuant to a Sale, including
the method of payment, shall be determined by the Board and may consist entirely
of cash, check, promissory note, other Shares of Common Stock having a fair
market value on the date of surrender equal to the aggregate exercise/purchase
price of the Shares as to which said option shall be exercised or Sale
consummated, or any combination of such methods of payment for the issuance of
Shares.
9. EXERCISE OF OPTION.
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(a) PROCEDURE FOR EXERCISE; RIGHTS AS A STOCKHOLDER. Any
Option granted hereunder shall be exercisable at such times and under such
conditions as determined by the Board, including performance criteria with
respect to the Company and/or the Optionee, and as shall be permissible under
the terms of the Plan.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice
of such exercise has been given to the Company in accordance with the terms of
the Option by the person entitled to exercise the Option and full payment for
the Shares with respect to which the Option is exercised has been received by
the Company. Full payment may, as authorized by the Board, consist of any
consideration and method of payment allowable under Section 8(c) of the Plan.
Each Optionee who exercises an Option shall, upon notification of the amount due
(if any) and prior to or concurrent with delivery of the certificate
representing the Shares, pay to the Company amounts necessary to satisfy
applicable federal, state and local tax withholding requirements. An Optionee
must also provide a duly executed copy of any shareholder stock transfer
agreement then in effect and determined to be applicable by the Board. Until the
issuance (as evidenced by the appropriate entry on the books of the Company or
of a duly authorized transfer agent of the Company) of the stock certificate
evidencing such Shares, no right to vote or receive dividends or any other
rights as a stockholder shall exist with respect to the Optioned Stock,
notwithstanding the exercise of the Option. No adjustment will be made for a
dividend or other right for which the record date is prior to the date the stock
certificate is issued, except as provided in Section 11 of the Plan.
Exercise of an Option in any manner shall result in a decrease
in the number of Shares which thereafter may be available, both for purposes of
the Plan and for sale under the Option, by the number of Shares as to which the
Option is exercised.
(b) TERMINATION OF STATUS AS AN EMPLOYEE OR CONSULTANT.
If an Employee or Consultant ceases to serve as an Employee or Consultant (as
the case may be), he may, but only within three (3) months (or with respect to
Nonqualified Stock Options, such other period of time not exceeding the
limitations of Section 7 above as is determined by the Board at the time of
grant of the Nonqualified Stock Option) after the date he ceases to be an
Employee or Consultant (as the case may be) of the Company, exercise his Option
to the extent that he was entitled to exercise it at the date of such
termination. To the extent that he was not entitled to exercise the Option at
the date of such termination, or if he does not exercise such Option (which he
was entitled to exercise) within the time specified herein, the Option shall
terminate.
(c) DISABILITY OF OPTIONEE. Notwithstanding the
provisions of Section 9(b) above, in the event an Employee or Consultant is
unable to continue his employment or consulting relationship (as the case may
be) with the Company as a result of his total and permanent disability (as
defined in Section 22(e)(3) of the Code), he may, but only within twelve (12)
months (or with respect to Nonqualified Stock Options, such other period of time
not exceeding the limitations of Section 7 above as is determined by the Board
at the time of grant of the Nonqualified Stock Option)
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from the date of termination, exercise his Option to the extent he was entitled
to exercise it at the date of such termination. To the extent that he was not
entitled to exercise the Option at the date of termination, or if he does not
exercise such Option (which he was entitled to exercise) within the time
specified herein, the Option shall terminate.
(d) DEATH OF OPTIONEE. In the event of the death of an
Optionee during the term of the Option who is at the time of his death an
Employee or Consultant of the Company and who shall have been in Continuous
Status as an Employee or Consultant since the date of grant of the Option, the
Option may be exercised, at any time within twelve (12) months (or such other
period of time not exceeding the limitations of Section 7 above as is determined
by the Board at the time of grant of the Option) following the date of death, by
the Optionee's estate or by a person who acquired the right to exercise the
Option by bequest or inheritance, but only to the extent of the right to
exercise as of the date of death.
10. NONTRANSFERABILITY OF OPTIONS. An Option may not be sold,
pledged, assigned, hypothecated, transferred or disposed of in any manner other
than by will or by the laws of descent or distribution and may be exercised
during the lifetime of the Optionee only by the Optionee.
11. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER. Subject
to any required action by the stockholders of the Company, the number of shares
of Common Stock covered by each outstanding Option and the number of shares of
Common Stock which have been authorized for issuance under the Plan but as to
which no Options have yet been granted or sales made or which have been returned
to the Plan upon cancellation or expiration of an Option, as well as the price
per share of Common Stock covered by each such outstanding Option, shall be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from a stock split, reverse stock split, stock
dividend, combination or reclassification of the Common Stock, or any other
increase or decrease in the number of issued shares of Common Stock effected
without receipt of consideration by the Company; provided, however, that
conversion of any convertible securities of the Company shall not be deemed to
have been "effected without receipt of consideration." Such adjustment shall be
made by the Board, whose determination in that respect shall be final, binding
and conclusive. Except as expressly provided herein, no issuance by the Company
of shares of stock of any class, or securities convertible into shares of stock
of any class, shall affect, and no adjustment by reason thereof shall be made
with respect to, the number or price of shares of Common Stock subject to an
Option.
In the event of the proposed dissolution or liquidation of the Company,
the Option will terminate immediately prior to the consummation of such proposed
action, unless otherwise provided by the Board. The Board may, in the exercise
of its sole discretion in such instances, declare that any Option shall
terminate as of a date fixed by the Board and give each Optionee the right to
exercise his Option as to all or any part of the Optioned Stock, including
Shares as to which the Option would not otherwise be exercisable. In the event
of a proposed sale of all or substantially all of the assets of the Company, or
the merger of the Company with or into another corporation, the Option shall be
assumed or an equivalent option shall be substituted by such successor
corporation
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or a parent or subsidiary of such successor corporation, unless the Board
determines, in the exercise of its sole discretion and in lieu of such
assumption or substitution, that the Optionee shall have the right to exercise
the Option as to all of the Optioned Stock, including Shares as to which the
Option would not otherwise be exercisable. If the Board makes an Option fully
exercisable in lieu of assumption or substitution in the event of a merger or
sale of assets, the Board shall notify the Optionee that the Option shall be
fully exercisable for a period of thirty (30) days from the date of such notice
or such shorter period as the Board may specify in the notice, and the Option
will terminate upon the expiration of such period.
12. TIME OF GRANTING OPTIONS. The date of grant of an Option
shall, for all purposes, be the date on which the Board makes the determination
granting such Option. Notice of the determination shall be given to each
Employee or Consultant to whom an Option is so granted within a reasonable time
after the date of such grant.
13. AMENDMENT AND TERMINATION OF THE PLAN.
(a) AMENDMENT AND TERMINATION. The Board may amend or
terminate the Plan from time to time in such respects as the Board may deem
advisable; provided that, the following revisions or amendments shall require
approval of the stockholders of the Company in the manner described in Section
17 of the Plan:
(i) any increase in the number of Shares subject
to the Plan, other than in connection with an adjustment under Section 11 of the
Plan;
(ii) any change in the designation of the class
of Employees or Consultants eligible to be granted Options; or
(iii) if the Company has a class of equity
security registered under Section 12 of the Exchange Act at the time of such
revision or amendment, any material increase in the benefits accruing to
participants under the Plan.
(b) STOCKHOLDER APPROVAL. If any amendment requiring
stockholder approval under Section 13(a) of the Plan is made subsequent to the
first registration of any class of equity security by the Company under Section
12 of the Exchange Act, such stockholder approval shall be solicited as
described in Section 17(a) of the Plan.
(c) EFFECT OF AMENDMENT OR TERMINATION. Any such
amendment or termination of the Plan shall not affect Options already granted,
and such Options shall remain in full force and effect as if this Plan had not
been amended or terminated, unless mutually agreed otherwise between the
Optionee and the Board, which agreement must be in writing and signed by the
Optionee and the Company.
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14. CONDITIONS UPON ISSUANCE OF SHARES. Shares shall not be issued
pursuant to the exercise of an Option or a Sale unless the exercise of such
Option or consummation of the Sale and the issuance and delivery of such Shares
pursuant thereto shall comply with all relevant provisions of law, including,
without limitation, the Securities Act of 1933, as amended, applicable state
securities laws, the Exchange Act, the rules and regulations promulgated
thereunder, and the requirements of any stock exchange upon which the Shares may
then be listed, and shall be further subject to the approval of counsel for the
Company with respect to such compliance.
As a condition to the exercise of an Option or a Sale, the
Company may require the person exercising such Option or to whom Shares are
being Sold to represent and warrant at the time of any such exercise or Sale
that the Shares are being purchased only for investment and without any present
intention to sell or distribute such Shares if, in the opinion of counsel for
the Company, such a representation is required by any of the aforementioned
relevant provisions of law.
15. RESERVATION OF SHARES. The Company, during the term of this
Plan, will at all times reserve and keep available such number of Shares as
shall be sufficient to satisfy the requirements of the Plan.
Inability of the Company to obtain authority from any regulatory body
having jurisdiction, which authority is deemed by the Company's counsel to be
necessary to the lawful issuance and sale of any Shares hereunder, shall relieve
the Company of any liability in respect of the failure to issue or sell such
Shares as to which such requisite authority shall not have been obtained.
16. OPTION AGREEMENT. Options shall be evidenced by written option
agreements in such form as the Board shall approve.
17. STOCKHOLDER APPROVAL. Continuance of the Plan shall be subject
to approval by the stockholders of the Company within twelve months before or
after the date the Plan is adopted. If such stockholder approval is obtained at
a duly held stockholders' meeting, it may be obtained by the affirmative vote of
the holders of a majority of the outstanding shares of the Company, such holders
being present or represented and entitled to vote thereon. If and in the event
that the Company registers any class of any equity security pursuant to Section
12 of the Exchange Act, the approval of such stockholders of the Company shall
be:
(a) SOLICITATION.
(i) solicited substantially in accordance with
Section 14(a) of the Exchange Act and the rules and regulations promulgated
thereunder, or
(ii) solicited after the Company has furnished in
writing to the holders entitled to vote substantially the same information
concerning the Plan as that which would be required by the rules and regulations
in effect under Section 14(a) of the Exchange Act at the time such information
is furnished; and
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(b) TIME. Obtained at or prior to the first annual
meeting of stockholders held subsequent to the first registration of any class
of equity securities of the Company under Section 12 of the Exchange Act.
If such stockholder approval is obtained by written consent,
it must be obtained by the written consent of stockholders of the Company in
compliance with the requirements of applicable state law.
/s/ Eric W. Strid
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Eric Strid, President
ADOPTED: FEBRUARY 5, 1993
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