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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
FEBRUARY 9, 2000
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.
(C) "CODE" means the Internal Revenue Code of 1986, as amended.
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(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.
(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.
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(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.
(3) To amend the NSO Plan or a Stock Award as provided in Section 12.
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(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 Section 11 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 five million two hundred
eight-five thousand (5,285,000) 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.
(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
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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) (A) 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 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
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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.
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
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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.
(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
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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 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
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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 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
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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.
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