<PAGE>
As filed with the Securities and Exchange Commission on September 9, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DOCUMENTUM, INC.
(Exact name of registrant as specified in its charter)
----------------------------
Delaware 6801 Koll Center Parkway 95-4261421
- --------
(State of Incorporation) Pleasanton, CA 94566 (I.R.S. Employer
(925) 600-6800 Identification No.)
(Address and telephone number of principal executive offices)
----------------------------
1993 Equity Incentive Plan
1995 Employee Stock Purchase Plan
1996 Non-Officer Equity Incentive Plan
(Full title of the plans)
Jeffrey A. Miller
President and Chief Executive Officer
Documentum, Inc.
6801 Koll Center Parkway
Pleasanton, CA 94566
(925) 600-6800
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------------------
Copies to:
James F. Fulton, Jr., Esq.
Cooley Godward LLP
3000 Sand Hill Road
Building 3, Suite 230
Menlo Park, CA 94025-7116
(650) 843-5100
----------------------------
CALCULATION OF REGISTRATION FEE
================================================================================
<TABLE>
<CAPTION>
====================================================================================================================================
Title of Securities to Amount to be Proposed Maximum Proposed Maximum Amount of Registration
be Registered Registered Offering Price Per Share(1) Aggregate Offering Price(1) Fee
<S> <C> <C> <C> <C>
Stock Options and Common 2,660,000 $13.4224 - $15.875 $37,456,885 $10,413
Stock (par value $.001)
====================================================================================================================================
</TABLE>
1.
<PAGE>
================================================================================
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) under the Securities Act of 1933,
as amended (the "Act"). The offering price per share and aggregate
offering price is based upon (a) the average of the high and low prices of
Registrant's Common Stock as reported on the Nasdaq National Market on
September 3, 1999; (b) for shares issuable under the Company's Employee
Stock Purchase Plan calculated on the basis of 85% of the average high and
low price of Registrant's Common Stock as reported on the Nasdaq National
Market on September 3, 1999; or (c) for shares issuable pursuant to
outstanding options under the Company's Non-officer Equity Incentive Plan
calculated on the basis of the actual exercise price. The chart below
details the calculation of the registration fee:
<TABLE>
<CAPTION>
Title of Shares Number of Shares Offering Price Per Share Aggregate Offering Price
=============================================================================================================================
<S> <C> <C> <C>
Common Stock issuable pursuant to the 1993 Equity 500,000 $ 15.875 $ 7,937,500
Incentive Plan
- -----------------------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to the 1995 Employee 200,000 $13.4937 $ 2,698,740
Stock Purchase Plan
- -----------------------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to outstanding options 1,750,940 $13.4224 $23,501,817
under the 1996 Non-Officer Equity Incentive Plan
- -----------------------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to unissued options 209,060 $ 15.875 $ 3,318,828
under the 1996 Non-Officer Equity Incentive Plan
=============================================================================================================================
</TABLE>
================================================================================
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
2.
<PAGE>
INCORPORATION OF DOCUMENTS BY REFERENCE
The contents of Registration Statement on Form S-8 (No. 333-01832) filed
with the Securities and Exchange Commission on March 4, 1996, Registration
Statement on Form S-8 (No. 333-15239) filed with the Securities and Exchange
Commission on October 31, 1996, and Registration Statement on Form S-8 (No. 333-
61871) filed with the Securities and Exchange Commission on August 20, 1998 are
incorporated herein by reference.
EXHIBITS
Exhibit
Number
- ------
4.1(2) Amended and Restated Certificate of Incorporation.
4.2(1) Amended and Restated Bylaws.
4.3(3) Certificate of Amendment to the Amended and Restated Certificate of
Incorporation.
4.4(1) Specimen stock certificate.
4.5(1) Amended and Restated Investor Rights Agreement, date September 20, 1994,
between the Registrant and certain investors.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement.
24.1 Power of Attorney. Reference is made to the signature page.
99.1(4) Registrant's 1993 Equity Incentive Plan, as amended.
99.2(4) Registrant's 1995 Employee Stock Purchase Plan, as amended.
99.3 Registrant's 1996 Non-Officer Equity Incentive Plan, as amended.
_____________________
(1) Filed as an exhibit to the Form S-1 Registration Statement (No. 33-80047),
as amended through the date hereof and incorporated here by reference.
(2) Filed as an exhibit to the Form S-8 Registration Statement (No. 333-01832)
and incorporated herein by reference.
(3) Filed as an exhibit to the Form S-3 Registration Statement (No. 333-59331),
as amended through the date hereof and incorporated herein by reference.
(4) Filed as an exhibit to the Definitive Proxy Statement (No. 000-27358) filed
with the Securities and Exchange Commission on April 23, 1999.
3.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Pleasanton, State of California, on September 9,
1999.
DOCUMENTUM, INC.
By: /s/ Jeffrey A. Miller
----------------------
Jeffrey A. Miller
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Jeffrey A. Miller and Mark S. Garrett,
and each of them, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitutes or substitute, may lawfully do or cause to be
done by virtue hereof.
4.
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Jeffrey A. Miller President, Chief Executive Officer and September 9, 1999
- --------------------------- Director (Principal Executive Officer)
Jeffrey A. Miller
/s/ Mark S. Garrett Vice President, Finance and Operations, September 9, 1999
- --------------------------- and Chief Financial Officer (Principal
Mark S. Garrett Financial and Accounting Officer)
/s/ Robert Adams Director September 9, 1999
- ---------------------------
Robert Adams
/s/ Gary Banks Director September 9, 1999
- ---------------------------
Gary Banks
/s/ Kathryn Gould Director September 9, 1999
- ---------------------------
Kathryn Gould
/s/ Geoffrey Moore Director September 9, 1999
- ---------------------------
Geoffrey Moore
/s/ Edward Zander Director September 9, 1999
- ---------------------------
Edward Zander
</TABLE>
5.
<PAGE>
EXHIBIT INDEX
Exhibit
Number
- ------
4.1(2) Amended and Restated Certificate of Incorporation.
4.2(1) Amended and Restated Bylaws.
4.3(3) Certificate of Amendment to the Amended and Restated Certificate of
Incorporation.
4.4(1) Specimen stock certificate.
4.5(1) Amended and Restated Investor Rights Agreement, date September 20, 1994,
between the Registrant and certain investors.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement.
24.1 Power of Attorney. Reference is made to the signature page.
99.1(4) Registrant's 1993 Equity Incentive Plan, as amended.
99.2(4) Registrant's 1995 Employee Stock Purchase Plan, as amended.
99.3 Registrant's 1996 Non-Officer Equity Incentive Plan, as amended.
_____________________
(1) Filed as an exhibit to the Form S-1 Registration Statement (No. 33-80047),
as amended through the date hereof and incorporated here by reference.
(2) Filed as an exhibit to the Form S-8 Registration Statement (No. 333-01832)
and incorporated herein by reference.
(3) Filed as an exhibit to the Form S-3 Registration Statement (No. 333-59331),
as amended through the date hereof and incorporated herein by reference.
(4) Filed as an exhibit to the Definitive Proxy Statement (No. 000-27358) filed
with the Securities and Exchange Commission on April 23, 1999.
6.
<PAGE>
Exhibit 5.1
September 9, 1999
Documentum, Inc.
6801 Koll Center Parkway
Pleasanton, CA 94566
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Documentum, Inc. (the "Company") of a Registration Statement
on Form S-8 (the "Registration Statement") with the Securities and Exchange
Commission covering the offering of up to 2,660,000 shares of the Company's
common stock, $.001 par value (the "Common Stock"), pursuant to its 1993 Equity
Incentive Plan, 1995 Employee Stock Purchase Plan and 1996 Non-Officer Equity
Incentive Plan (the "Plans").
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, your Certificate of Incorporation and Bylaws, as amended,
and such other documents, records, certificates, memoranda and other instruments
as we deem necessary as a basis for this opinion. We have assumed the
genuineness and authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as copies thereof, and
the due execution and delivery of all documents where due execution and delivery
are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the shares of Common Stock, when sold and issued in accordance with the
Plans, the Registration Statement and related Prospectuses, will be validly
issued, fully paid, and nonassessable (except as to shares issued pursuant to
certain deferred payment arrangements, which will be fully paid and
nonassessable when such deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
Cooley Godward llp
By: /s/ Mark P. Tanoury
-------------------
Mark P. Tanoury
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement on Form S-8 of our report dated
January 20, 1999 included in Documentum, Inc.'s Annual Report on Form 10-K for
the year ended December 31, 1998.
/s/ PricewaterhouseCoopers
San Jose, California
September 9, 1999
8.
<PAGE>
Exhibit 99.3
DOCUMENTUM, INC.
1996 NON-OFFICER EQUITY INCENTIVE PLAN
Adopted by Board on October 16, 1996
As Amended On
March 6, 1997
December 17, 1997
January 7, 1998
February 5, 1998
July 10, 1998
August 6, 1998
February 3, 1999
April 14, 1999
1. Purposes.
(a) The purpose of the 1996 Non-Officer Equity Incentive (The "NSO Plan")
is to provide a means by which selected Employees of and Consultants to the
Company, and its Affiliates, may be given an opportunity to benefit from
increases in value of the stock of the Company through the granting of (i)
Nonstatutory Stock Options, (ii) stock bonuses, and (iii) rights to purchase
restricted stock, all as defined below.
(b) The Company, by means of the NSO Plan, seeks to retain the services of
persons (other than Directors and Employees serving as Officers of the Company
or its Affiliates) who are now Employees of or Consultants to the Company or its
Affiliates, to secure and retain the services of new Employees and Consultants,
and to provide incentives for such persons to exert maximum efforts for the
success of the Company and its Affiliates.
(c) The Company intends that the Stock Awards issued under the NSO Plan
shall, in the discretion of the Board or any Committee to which responsibility
for administration of the NSO Plan has been delegated pursuant to subsection
3(c), be either (i) Nonstatutory Stock Options granted pursuant to Section 6
hereof, or (ii) stock bonuses or rights to purchase restricted stock granted
pursuant to Section 7 hereof.
2. Definitions.
(a) "Affiliate" means any parent corporation or subsidiary corporation,
whether now or hereafter existing, as those terms are defined in Sections 424(e)
and (f), respectively, of the Code.
(b) "Board" means the Board of Directors of the Company.
<PAGE>
(c) "Code" means the Internal Revenue Code of 1986, as amended.
(d) "Committee" means a Committee appointed by the Board in accordance
with subsection 3(c) of the NSO Plan.
(e) "Company" means Documentum, Inc., a Delaware corporation.
(f) "Consultant" means any person, including an advisor, engaged by the
Company or an Affiliate to render consulting services and who is compensated for
such services, provided that the term "Consultant" shall not include those
persons who render services as a Director.
(g) "Continuous Status as an Employee or Consultant" means that the
service of an individual to the Company, whether as an Employee or Consultant,
is not interrupted or terminated. The Board, in its sole discretion, may
determine whether Continuous Status as an Employee or Consultant shall be
considered interrupted in the case of: (i) any leave of absence approved by the
Board, including sick leave, military leave, or any other personal leave; or
(ii) transfers between locations of the Company or between the Company,
Affiliates or their successors.
(h) "Director" means a member of the Board.
(i) "Disability" means permanent and total disability as defined in
Section 22(e)(3) of the Code.
(j) "Employee" means any person employed by the Company or any Affiliate
of the Company. Neither service as a Director nor payment of a director's fee by
the Company shall be sufficient to constitute "employment" by the Company.
(k) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
(l) "Fair Market Value" means, as of any date, the value of the common
stock of the Company, determined as follows:
(1) If the common stock is listed on any established stock exchange
or traded on the Nasdaq National Market or the Nasdaq SmallCap Market, the Fair
Market Value of a share of common stock shall be the closing sales price for
such stock (or the closing bid, if no sales were reported) as quoted on such
exchange or market (or the exchange or market with the greatest volume of
trading in the Company's common stock) on the date of determination, and if the
date of determination was not a maket trading day, then on the last market
trading day prior to the date of determination, as reported in The Wall Street
Journal or such other source as the Board deems reliable.
(2) In the absence of such markets for the common stock, the Fair
Market Value shall be determined in good faith by the Board.
<PAGE>
(m) "Nonstatutory Stock Option" means an Option not intended to qualify as
an incentive stock option pursuant to Section 422 of the Code and the
regulations promulgated thereunder.
(n) "Officer" means a person who is an officer of the Company within the
meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder.
(o) "Option" means a stock option granted pursuant to the NSO Plan.
(p) "Option Agreement" means a written agreement between the Company and
an Optionee evidencing the terms and conditions of an individual Option grant.
Each Option Agreement shall be subject to the terms and conditions of the NSO
Plan.
(q) "Optionee" means an Employee or Consultant who holds an outstanding
Option.
(r) "NSO Plan" means this 1996 Non-Officer Equity Incentive Plan.
(s) "Stock Award" means any right granted under the NSO Plan, including
any Option, any stock bonus and any right to purchase restricted stock.
(t) "Stock Award Agreement" means a written agreement between the Company
and a holder of a Stock Award evidencing the terms and conditions of an
individual Stock Award grant. Each Stock Award Agreement shall be subject to
the terms and conditions of the NSO Plan.
3. Administration.
(a) The NSO Plan shall be administered by the Board unless and until the
Board delegates administration to a Committee, as provided in subsection 3(c).
(b) The Board shall have the power, subject to, and within the limitations
of, the express provisions of the NSO Plan:
(1) To determine from time to time which of the persons eligible
under the NSO Plan shall be granted Stock Awards; when and how each Stock Award
shall be granted; whether a Stock Award will be a Nonstatutory Stock Option, a
stock bonus, a right to purchase restricted stock, or a combination of the
foregoing; the provisions of each Stock Award granted (which need not be
identical), including the time or times when a person shall be permitted to
receive stock pursuant to a Stock Award; and the number of shares with respect
to which a Stock Award shall be granted to each such person.
(2) To construe and interpret the NSO Plan and Stock Awards granted
under it, and to establish, amend and revoke rules and regulations for its
administration. The Board, in the exercise of this power, may correct any
defect, omission or inconsistency in the NSO Plan or in any Stock Award
Agreement, in a manner and to the extent it shall deem necessary or expedient to
make the NSO Plan fully effective.
<PAGE>
(3) To amend the NSO Plan or a Stock Award as provided in Section 12.
(4) Generally, to exercise such powers and to perform such acts as
the Board deems necessary or expedient to promote the best interests of the
Company which are not in conflict with the provisions of the NSO Plan.
(c) The Board may delegate administration of the NSO Plan to a committee
composed of one or more members of the Board (the "Committee"). If
administration is delegated to a Committee, the Committee shall have, in
connection with the administration of the NSO Plan, the powers theretofore
possessed by the Board (and references in this NSO Plan to the Board shall
thereafter be to the Committee), subject, however, to such resolutions, not
inconsistent with the provisions of the NSO Plan, as may be adopted from time to
time by the Board. The Board may abolish the Committee at any time and revest
in the Board the administration of the NSO Plan.
4. Shares Subject To The NSO Plan.
(a) Subject to the provisions of Section11 relating to adjustments upon
changes in stock, the number of shares of stock that may be issued pursuant to
Stock Awards shall not exceed in the, aggregate four million three hundred
thirty five thousand (4,335,000) shares of the Company's common stock. If any
Stock Award shall for any reason expire or otherwise terminate, in whole or in
part, without having been exercised in full, the stock not acquired under such
Stock Award shall revert to and again become available for issuance under the
NSO Plan.
(b) The stock subject to the NSO Plan may be unissued shares or reacquired
shares, bought on the market or otherwise.
5. Eligibility.
Stock Awards may be granted only to Employees or Consultants who are not
(i) Officers, (ii) Directors, or (iii) then subject to Section 16 of the
Exchange Act.
6. Option Provisions.
Each Option shall be in such form and shall contain such terms and
conditions as the Board shall deem appropriate. The provisions of separate
Options need not be identical, but each Option shall include (through
incorporation of provisions hereof by reference in the Option or otherwise) the
substance of each of the following provisions:
(a) Term. No Option shall be exercisable after the expiration of ten (10)
years from the date it was granted.
(b) Price. The exercise price of each Nonstatutory Stock Option shall be
not less than eighty-five percent (85%) of the Fair Market Value of the stock
subject to the Option on the date the Option is granted.
<PAGE>
(c) Consideration. The purchase price of stock acquired pursuant to an
Option shall be paid, to the extent permitted by applicable statutes and
regulations, either (i) in cash at the time the Option is exercised, or (ii) at
the discretion of the Board or the Committee, at the time of the grant of the
Option, (A) by delivery to the Company of other common stock of the Company, (B)
according to a deferred payment arrangement, except that payment of the common
stock's "par value" (as defined in the Delaware General Corporation Law) shall
not be made by deferred payment or other arrangement (which may include, without
limiting the generality of the foregoing, the use of other common stock of the
Company) with the person to whom the Option is granted or to whom the Option is
transferred pursuant to subsection 6(d), or (C) in any other form of legal
consideration that may be acceptable to the Board.
In the case of any deferred payment arrangement, interest shall be payable
at least annually and shall be charged at the minimum rate of interest necessary
to avoid the treatment as interest, under any applicable provisions of the Code,
of any amounts other than amounts stated to be interest under the deferred
payment arrangement.
(d) Transferability. An Option shall not be transferable except by will
or by the laws of descent and distribution (and shall be exercisable during the
lifetime of the person to whom the Option is granted only by such person) unless
the applicable Option Agreement expressly provides for other transferability.
Notwithstanding the foregoing, the person to whom the Option is granted may, by
delivering written notice to the Company, in a form satisfactory to the Company,
designate a third party who, in the event of the death of the Optionee, shall
thereafter be entitled to exercise the Option.
(e) Vesting. The total number of shares of stock subject to an Option
may, but need not, be allotted in periodic installments (which may, but need
not, be equal). The Option Agreement may provide that from time to time during
each of such installment periods, the Option may become exercisable ("vest")
with respect to some or all of the shares allotted to that period, and may be
exercised with respect to some or all of the shares allotted to such period
and/or any prior period as to which the Option became vested but was not fully
exercised. The Option may be subject to such other terms and conditions on the
time or times when it may be exercised (which may be based on performance or
other criteria) as the Board may deem appropriate. The vesting provisions of
individual Options may vary. The provisions of this subsection 6(e) are subject
to any Option provisions governing the minimum number of shares as to which an
Option may be exercised.
(f) Termination of Employment or Consulting Relationship. In the event an
Optionee's Continuous Status as an Employee or Consultant terminates (other than
upon the Optionee's death or disability), the Optionee may exercise his or her
Option (to the extent that the Optionee was entitled to exercise it as of the
date of termination) but only within such period of time ending on the earlier
of (i) the date three (3) months following the termination of the Optionee's
Continuous Status as an Employee or Consultant (or such longer or shorter period
specified in the Option Agreement), or (ii) the expiration of the term of the
Option as set forth in the Option Agreement. If, at the date of termination,
the Optionee is not entitled to exercise his or her entire Option, the shares
covered by the unexercisable portion of the Option shall revert to the NSO Plan.
If, after termination, the Optionee does not exercise his or her Option within
the time specified in
<PAGE>
the Option Agreement, the Option shall terminate, and the shares covered by such
Option shall revert to and again become available for issuance under the NSO
Plan.
An Optionee's Option Agreement may also provide that if the exercise of the
Option following the termination of the Optionee's Continuous Status as an
Employee or Consultant (other than upon the Optionee's death or disability)
would result in liability under Section 16(b) of the Exchange Act, then the
Option shall terminate on the earlier of (i) the expiration of the term of the
Option set forth in the Option Agreement, or (ii) the tenth (10th) day after the
last date on which such exercise would result in such liability under Section
16(b) of the Exchange Act. Finally, an Optionee's Option Agreement may also
provide that if the exercise of the Option following the termination of the
Optionee's Continuous Status as an Employee or Consultant (other than upon the
Optionee's death or disability) would be prohibited at any time solely because
the issuance of shares would violate the registration requirements under the
Act, then the Option shall terminate on the earlier of (i) the expiration of the
term of the Option set forth in the first paragraph of this subsection 6(f), or
(ii) the expiration of a period of three (3) months after the termination of the
Optionee's Continuous Status as an Employee or Consultant during which the
exercise of the Option would not be in violation of such registration
requirements.
(g) Disability of Optionee. In the event an Optionee's Continuous Status
as an Employee or Consultant terminates as a result of the Optionee's
Disability, the Optionee may exercise his or her Option (to the extent that the
Optionee was entitled to exercise it as of the date of termination), but only
within such period of time ending on the earlier of (i) the date six (6) months
following such termination (or such longer or shorter period specified in the
Option Agreement), or (ii) the expiration of the term of the Option as set forth
in the Option Agreement. If, at the date of termination, the Optionee is not
entitled to exercise his or her entire Option, the shares covered by the
unexercisable portion of the Option shall revert to and again become available
for issuance under the NSO Plan. If, after termination, the Optionee does not
exercise his or her Option within the time specified herein, the Option shall
terminate, and the shares covered by such Option shall revert to and again
become available for issuance under the NSO Plan.
(h) Death of Optionee. In the event of the death of an Optionee during,
or within a period specified in the Option Agreement after the termination of,
the Optionee's Continuous Status as an Employee or Consultant, the Option may be
exercised (to the extent the Optionee was entitled to exercise the Option as of
the date of death) by the Optionee's estate, by a person who acquired the right
to exercise the Option by bequest or inheritance, but only within the period
ending on the earlier of (i) the date twelve (12) months following the date of
death (or such longer or shorter period specified in the Option Agreement), or
(ii) the expiration of the term of such Option as set forth in the Option
Agreement. If, at the time of death, the Optionee was not entitled to exercise
his or her entire Option, the shares covered by the unexercisable portion of the
Option shall revert to and again become available for issuance under the NSO
Plan. If, after death, the Option is not exercised within the time specified
herein, the Option shall terminate, and the shares covered by such Option shall
revert to and again become available for issuance under the NSO Plan.
7. Terms Of Stock Bonuses And Purchases Of Restricted Stock.
<PAGE>
Each stock bonus or restricted stock purchase agreement shall be in such
form and shall contain such terms and conditions as the Board or the Committee
shall deem appropriate. The terms and conditions of stock bonus or restricted
stock purchase agreements may change from time to time, and the terms and
conditions of separate agreements need not be identical, but each stock bonus or
restricted stock purchase agreement shall include (through incorporation of
provisions hereof by reference in the agreement or otherwise) the substance of
each of the following provisions as appropriate:
(a) Purchase Price. The purchase price under each restricted stock
purchase agreement shall be such amount as the Board or Committee shall
determine and designate in such agreement, but in no event shall the purchase
price be less than eighty-five percent (85%) of the stock's Fair Market Value on
the date such award is made. Notwithstanding the foregoing, the Board or the
Committee may determine that eligible participants in the NSO Plan may be
awarded stock pursuant to a stock bonus agreement in consideration for past
services actually rendered to the Company or for its benefit.
(b) Transferability. No rights under a stock bonus or restricted stock
purchase agreement shall be transferable except by will or the laws of descent
and distribution, unless the applicable Stock Award Agreement expressly provides
for other transferability.
(c) Consideration. The purchase price of stock acquired pursuant to a
stock purchase agreement shall be paid either: (i) in cash at the time of
purchase; (ii) at the discretion of the Board or the Committee, according to a
deferred payment or other arrangement, except that payment of the common stock's
"par value" (as defined in the Delaware General Corporation Law) shall not be
made by deferred payment or other arrangement (which may include, without
limiting the generality of the foregoing, the use of other common stock of the
Company) with the person to whom the stock is sold; or (iii) in any other form
of legal consideration that may be acceptable to the Board or the Committee in
its discretion. Notwithstanding the foregoing, the Board or the Committee to
which administration of the NSO Plan has been delegated may award stock pursuant
to a stock bonus agreement in consideration for past services actually rendered
to the Company or for its benefit.
(d) Vesting. Shares of stock sold or awarded under the NSO Plan may, but
need not, be subject to a repurchase option in favor of the Company in
accordance with a vesting schedule to be determined by the Board or the
Committee.
(e) Termination of Employment or Consulting Relationship. In the event a
Participant's Continuous Status as an Employee or Consultant terminates, the
Company may repurchase or otherwise reacquire, subject to the limitations
described in subsection 7(d), any or all of the shares of stock held by that
person which have not vested as of the date of termination under the terms of
the stock bonus or restricted stock purchase agreement between the Company and
such person.
8. Covenants Of The Company.
<PAGE>
(a) During the terms of the Stock Awards, the Company shall keep available
at all times the number of shares of stock required to satisfy such Stock
Awards.
(b) The Company shall seek to obtain from each regulatory commission or
agency having jurisdiction over the NSO Plan such authority as may be required
to issue and sell shares of stock upon exercise of the Stock Award; provided,
however, that this undertaking shall not require the Company to register under
the Securities Act of 1933, as amended (the "Securities Act") either the NSO
Plan, any Stock Award or any stock issued or issuable pursuant to any such Stock
Award. If, after reasonable efforts, the Company is unable to obtain from any
such regulatory commission or agency the authority which counsel for the Company
deems necessary for the lawful issuance and sale of stock under the NSO Plan,
the Company shall be relieved from any liability for failure to issue and sell
stock upon exercise of such Stock Awards unless and until such authority is
obtained.
9. Use Of Proceeds From Stock.
Proceeds from the sale of stock pursuant to Stock Awards shall constitute
general funds of the Company.
10. Miscellaneous.
(a) The Board shall have the power to accelerate the time at which a Stock
Award may first be exercised or the time during which a Stock Award or any part
thereof will vest pursuant to subsection 6(e) or 7(d), notwithstanding the
provisions in the Stock Award stating the time at which it may first be
exercised or the time during which it will vest.
(b) Neither an Employee or Consultant, nor any person to whom a Stock
Award is transferred under subsection 6(d) or 7(b) shall be deemed to be the
holder of, or to have any of the rights of a holder with respect to, any shares
subject to such Stock Award unless and until such person has satisfied all
requirements for exercise of the Stock Award pursuant to its terms.
(c) Nothing in the NSO Plan or any instrument executed or Stock Award
granted pursuant thereto shall confer upon any Employee, Consultant or other
holder of Stock Awards any right to continue in the employ of the Company or any
Affiliate (or to continue acting as a Consultant) or shall affect the right of
the Company or any Affiliate to terminate the employment of any Employee with or
without cause, or to terminate the relationship of any Consultant in accordance
with the terms of that Consultant's agreement with the Company or Affiliate to
which such Consultant is providing services.
(d) Securities Law Compliance. The Company may require any person to whom
a Stock Award is granted, or any person to whom a Stock Award is transferred
pursuant to subsection 6(d) or 7(b), as a condition of exercising or acquiring
stock under any Stock Award, (1) to give written assurances satisfactory to the
Company as to such person's knowledge and experience in financial and business
matters and/or to employ a purchaser representative reasonably satisfactory to
the Company who is knowledgeable and experienced in financial and business
matters, and that he or she is capable of evaluating, alone or together with the
purchaser representative, the merits and
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risks of exercising the Stock Award; and (2) to give written assurances
satisfactory to the Company stating that such person is acquiring the stock
subject to the Stock Award for such person's own account and not with any
present intention of selling or otherwise distributing the stock. The foregoing
requirements, and any assurances given pursuant to such requirements, shall be
inoperative if (i) the issuance of the shares upon the exercise or acquisition
of stock under the Stock Award has been registered under a then currently
effective registration statement under the Securities Act, or (ii) as to any
particular requirement, a determination is made by counsel for the Company that
such requirement need not be met in the circumstances under the then applicable
securities laws. The Company may require the holder of the Stock Award to
provide such other representations, written assurances or information which the
Company shall determine is necessary, desirable or appropriate to comply with
applicable securities and other laws as a condition of granting a Stock Award to
such person or permitting the holder of the Stock Award to exercise the Stock
Award. The Company may, upon advice of counsel to the Company, place legends on
stock certificates issued under the NSO Plan as such counsel deems necessary or
appropriate in order to comply with applicable securities laws, including, but
not limited to, legends restricting the transfer of the stock.
(e) Withholding. To the extent provided by the terms of a Stock Award
Agreement, the person to whom a Stock Award is granted may satisfy any federal,
state or local tax withholding obligation relating to the exercise or
acquisition of stock under a Stock Award by any of the following means or by a
combination of such means: (1) tendering a cash payment; (2) authorizing the
Company to withhold shares from the shares of the common stock otherwise
issuable to the participant as a result of the exercise or acquisition of stock
under the Stock Award; or (3) delivering to the Company owned and unencumbered
shares of the common stock of the Company.
11. Adjustments Upon Changes In Stock.
(a) If any change is made in the stock subject to the NSO Plan, or subject
to any Stock Award, without the receipt of consideration by the Company (through
merger, consolidation, reorganization, recapitalization, reincorporation, stock
dividend, dividend in property other than cash, stock split, liquidating
dividend, combination of shares, exchange of shares, change in corporate
structure or other transaction not involving the receipt of consideration by the
Company), the NSO Plan will be appropriately adjusted in the class(es) and the
maximum number of shares subject to the NSO Plan pursuant to subsection 4(a),
and the outstanding Stock Awards will be appropriately adjusted in the class(es)
and number of shares and price per share of stock subject to such outstanding
Stock Awards. Such adjustments shall be made by the Board or the Committee, the
determination of which shall be final, binding and conclusive. (The conversion
of any convertible securities of the Company shall not be treated as a
"transaction not involving the receipt of consideration by the Company.")
(b) In the event of: (1) a dissolution, liquidation or sale of all or
substantially all of the assets of the Company; (2) a merger or consolidation in
which the Company is not the surviving corporation; (3) a reverse merger in
which the Company is the surviving corporation but the shares of the Company's
common stock outstanding immediately preceding the merger are converted by
virtue of the merger into other property, whether in the form of securities,
cash or otherwise, then to the extent permitted by applicable law: (i) any
surviving corporation or an Affiliate of such
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surviving corporation shall assume any Stock Awards outstanding under the NSO
Plan or shall substitute similar Stock Awards for those outstanding under the
NSO Plan, or (ii) such Stock Awards shall continue in full force and effect. In
the event any surviving corporation and its Affiliates refuse to assume or
continue such Stock Awards, or to substitute similar Stock Awards for those
outstanding under the NSO Plan, then, with respect to Stock Awards held by
persons then performing services as Employees or Consultants, the time during
which such Stock Awards may be exercised shall be accelerated and the Stock
Awards terminated if not exercised prior to such event.
12. Amendment Of The NSO Plan and Stock Awards.
(a) The Board at any time, and from time to time, may amend the NSO Plan.
(b) The Board, in its sole discretion, may submit the NSO Plan and/or any
amendment to the NSO Plan for stockholder approval.
(c) It is expressly contemplated that the Board may amend the NSO Plan in
any respect the Board deems necessary or advisable to provide those eligible
with the maximum benefits provided or to be provided under the provisions of the
Code and the regulations promulgated thereunder.
(d) Rights and obligations under any Stock Award granted before amendment
of the NSO Plan shall not be impaired by any amendment of the NSO Plan unless
(i) the Company requests the consent of the person to whom the Stock Award was
granted and (ii) such person consents in writing.
(e) The Board at any time, and from time to time, may amend the terms of
any one or more Stock Award; provided, however, that the rights and obligations
under any Stock Award shall not be impaired by any such amendment unless (i) the
Company requests the consent of the person to whom the Stock Award was granted
and (ii) such person consents in writing.
13. Termination Or Suspension Of The NSO Plan.
(a) The Board may suspend or terminate the NSO Plan at any time. Unless
sooner terminated, the NSO Plan shall terminate on October 15, 2006, which shall
be within ten (10) years from the date the NSO Plan is adopted by the Board. No
Stock Awards may be granted under the NSO Plan while the NSO Plan is suspended
or after it is terminated.
(b) Rights and obligations under any Stock Award granted while the NSO
Plan is in effect shall not be impaired by suspension or termination of the NSO
Plan, except with the written consent of the person to whom the Stock Award was
granted.
14. Effective Date Of NSO Plan.
The NSO Plan shall become effective on October 16, 1996.
