Exhibit (d)(6)
AGILE SOFTWARE CORPORATION
NONSTATUTORY STOCK OPTION AGREEMENT
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(For Use With 2000 Nonstatutory Stock Option Plan)
RECITALS
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A. The Board has adopted the Plan for the purpose of retaining the
services of selected Employees and Consultants who provide services to the
Corporation (or any Parent or Subsidiary).
B. Optionee is to render valuable services to the Corporation (or a
Parent or Subsidiary), and this Agreement is executed pursuant to, and is
intended to carry out the purposes of, the Plan in connection with the
Corporation's grant of an option to Optionee.
C. All capitalized terms in this Agreement shall have the meaning
assigned to them in the attached Appendix.
NOW, THEREFORE, it is hereby agreed as follows:
1. Grant of Option. The Corporation hereby grants to Optionee, as of
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the Grant Date, an option to purchase up to the number of Option Shares
specified in the Grant Notice. The Option Shares shall be purchasable from time
to time during the option term specified in Paragraph 2 at the Exercise Price.
2. Option Term. This option shall have a term of ten (10) years
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measured from the Grant Date and shall accordingly expire at the close of
business on the Expiration Date, unless sooner terminated in accordance with
Paragraph 5, 6, or 16.
3. Limited Transferability. This option shall be neither transferable
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nor assignable by Optionee other than by will or by the laws of descent and
distribution and may be exercised, during Optionee's lifetime, only by Optionee
or the Optionee's guardian or legal representative.
4. Dates of Exercise. Except as otherwise provided herein, this option
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shall become exercisable for the Option Shares in one or more installments in an
amount not to exceed the number of vested Option Shares (as determined pursuant
to the Vesting Schedule) less the number of Option Shares previously acquired
upon exercise of this option. As the option becomes exercisable for such
installments, those installments shall accumulate and the option shall remain
exercisable for the accumulated installments until the Expiration Date or sooner
termination of the option term under Paragraph 5, 6, or 16.
5. Cessation of Service. The option term specified in Paragraph 2 shall
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terminate (and this option shall cease to be outstanding) prior to the
Expiration Date should any of the following provisions become applicable:
(a) Should Optionee cease to remain in Service for any reason (other
than death, Disability or Misconduct) while this option is outstanding,
then Optionee shall have a period of three (3) months (commencing with the date
of such cessation of Service) during which
to exercise this option, but in no event shall this option be exercisable at any
time after the Expiration Date.
(b) Should Optionee die while this option is outstanding, then the
personal representative of Optionee's estate or the person or persons to whom
the option is transferred pursuant to Optionee's will or in accordance with the
laws of descent and distribution shall have the right to exercise this option.
Such right shall lapse and this option shall cease to be outstanding upon the
earlier of (i) the expiration of the twelve (12) month period measured from the
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date of Optionee's death or (ii) the Expiration Date.
(c) Should Optionee cease to remain in Service by reason of Disability
while this option is outstanding, then Optionee shall have a period of twelve
(12) months (commencing with the date of such cessation of Service) during which
to exercise this option. In no event shall this option be exercisable at any
time after the Expiration Date.
(d) Notwithstanding the foregoing, if the exercise of this option
within the applicable time period set forth in Paragraph 5(a), (b), or (c) is
prevented by Paragraph 10, then this option shall remain exercisable until three
(3) months after the date Optionee is notified by the Corporation that this
option is exercisable. In no event shall this option be exercisable at any time
after the Expiration Date.
(e) During the limited period of post-Service exercisability,
this option may not be exercised in the aggregate for more than the number of
Option Shares which were vested at the time of Optionee's cessation of Service.
Upon the expiration of such limited exercise period or (if earlier) upon the
Expiration Date, this option shall terminate and cease to be outstanding for any
vested Option Shares for which the option has not been exercised. To the extent
Optionee is not vested in the Option Shares at the time of Optionee's cessation
of Service, this option shall immediately terminate and cease to be outstanding
with respect to those shares.
(f) Should Optionee's Service be terminated for Misconduct, then this
option shall terminate immediately and cease to remain outstanding.
6. Accelerated Vesting.
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(a) In the event of any Corporate Transaction, the Option Shares at the
time subject to this option but not otherwise vested shall automatically vest in
full so that this option shall, immediately prior to the effective date of the
Corporate Transaction, become fully exercisable for all of those Option Shares
and may be exercised for any or all of those Option Shares as fully-vested
shares of Common Stock. However, the Option Shares shall not vest on such an
accelerated basis if and to the extent: (i) this option is assumed by the
successor corporation (or parent thereof) in the Corporate Transaction or (ii)
this option is to be replaced with a cash incentive program of the successor
corporation which preserves the spread existing on the unvested Option Shares at
the time of the Corporate Transaction (the excess of the Fair Market Value of
those Option Shares over the Exercise Price payable for such shares) and
provides for subsequent payout in accordance with the same Vesting Schedule
applicable to those unvested Option Shares as set forth in the Grant Notice.
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(b) The Corporation shall use its best efforts to provide at least
twenty (20) days prior written notice of the occurrence of any Corporate
Transaction in which options under the Plan are not to be assumed by the
successor corporation.
(c) Immediately following the Corporate Transaction, this
option shall terminate and cease to be outstanding, except to the extent assumed
by the successor corporation (or parent thereof) in connection with the
Corporate Transaction.
(d) If this option is assumed in connection with a Corporate
Transaction, then this option shall be appropriately adjusted, immediately after
such Corporate Transaction, to apply to the number and class of securities which
would have been issuable to Optionee in consummation of such Corporate
Transaction had the option been exercised immediately prior to such Corporate
Transaction, and appropriate adjustments shall also be made to the Exercise
Price, provided the aggregate Exercise Price shall remain the same.
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(e) If this option is assumed in connection with a Corporate
Transaction and Optionee's Service ceases as a result of an Involuntary
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Termination within eighteen (18) months following such Corporate Transaction,
then the Optionee shall be credited with an additional eighteen (18) months of
Service (or such lesser number of months necessary to cause all of the Option
Shares to become vested) solely for purposes of calculating the number of vested
Option Shares. Further, notwithstanding anything stated in Paragraph 5 to the
contrary, this Option shall remain exercisable until the earlier of: (i) the
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Expiration Date, or (ii) the expiration of the one (1)-year period measured from
the date of the Involuntary Termination.
(f) This Agreement shall not in any way affect the right of the
Corporation to adjust, reclassify, reorganize or otherwise change its capital or
business structure or to merge, consolidate, dissolve, liquidate or sell or
transfer all or any part of its business or assets.
7. Adjustment in Option Shares. Should any change be made to the Common
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Stock by reason of any stock split, stock dividend, recapitalization,
combination of shares, exchange of shares or other change affecting the
outstanding Common Stock as a class without the Corporation's receipt of
consideration, appropriate adjustments shall be made to (i) the total number
and/or class of securities subject to this option and (ii) the Exercise Price in
order to reflect such change and thereby preclude a dilution or enlargement of
benefits hereunder.
8. Rights as a Stockholder, Employee, or Consultant. The holder of this
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option shall not have any Stockholder rights with respect to the Option Shares
until such person shall have exercised the option, paid the Exercise Price and
become a holder of record of the purchased shares. Further, no adjustment shall
be made for dividends, distributions or other rights for which the record date
is prior to the date such certificate is issued, except as provided in Section
7. If the Optionee is an Employee, the Optionee understands and acknowledges
that, except as otherwise provided in a separate, written employment agreement
between the Corporation (or Parent or Subsidiary) and the Optionee, the
Optionee's employment is "at will" and is for no specified term. Nothing in this
Agreement shall confer upon the Optionee any right to continue in the Service of
the Corporation (or Parent or Subsidiary) or interfere in any way with any right
of the Corporation (or Parent or Subsidiary) to terminate the Optionee's Service
as an Employee or Consultant, as the case may be, at any time.
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9. Manner of Exercising Option.
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(a) In order to exercise this option with respect to all or any part
of the Option Shares for which this option is at the time exercisable, Optionee
(or any other person or persons exercising the option) must take the following
actions:
(i) Pay the aggregate Exercise Price for the purchased shares
in one or more of the following forms:
(A) cash or check made payable to the Corporation;
(B) provided the Optionee is an Employee and in the
Corporation's sole discretion at the time this option is exercised, by delivery
of a promissory note in a form approved by the Corporation for the aggregate
Exercise Price, provided that any promissory note used to pay the Exercise Price
shall be subject to the provision of Paragraph 9(d) and that if the Corporation
is incorporated in the State of Delaware, the Optionee shall pay in cash that
portion of the aggregate Exercise Price not less than the par value of the
Option Shares being acquired;
(C) in shares of Common Stock held by Optionee (or any
other person or persons exercising the option) for the requisite period
necessary to avoid a charge to the Corporation's earnings for financial
reporting purposes and valued at Fair Market Value on the Exercise Date; or
(D) through a special sale and remittance procedure
pursuant to which Optionee (or any other person or persons exercising the
option) shall concurrently provide irrevocable instructions (a) to a
Corporation-designated brokerage firm to effect the immediate sale of the
purchased shares and remit to the Corporation, out of the sale proceeds
available on the settlement date, sufficient funds to cover the aggregate
Exercise Price payable for the purchased shares plus all applicable federal,
state, local, and foreign income and employment taxes required to be withheld by
the Corporation by reason of such exercise and (b) to the Corporation to deliver
the certificates for the purchased shares directly to such brokerage firm in
order to complete the sale.
(ii) Furnish to the Corporation appropriate documentation that
the person or persons exercising the option (if other than Optionee) have the
right to exercise this option.
(iii) Execute and deliver to the Corporation a written notice to
the Corporation in a form acceptable to the Corporation, indicating the
Optionee's intent to exercise the option and any such written representations as
may be requested by the Corporation in order for it to comply with the
applicable requirements of federal, state, and foreign securities laws.
(iv) Make appropriate arrangements with the Corporation (or
Parent or Subsidiary employing or retaining Optionee) for the satisfaction of
all federal, state, local, and foreign income and employment tax withholding
requirements applicable to the option exercise.
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(b) Unless the Exercise Price is paid pursuant to Paragraph
9(a)(i)(D), as soon as practical after the Exercise Date, the Corporation shall
issue to or on behalf of Optionee (or any other person or persons exercising
this option) a certificate for the purchased Option Shares, with the appropriate
legends affixed thereto.
(c) In no event may this option be exercised for any fractional
shares.
(d) No promissory note shall be permitted if an exercise of this
option using a promissory note would be a violation of any law. If at any time
the Corporation is subject to the regulations promulgated by the Board of
Governors of the Federal Reserve System or any other governmental entity
affecting the extension of credit in connection with the Corporation's
securities, any promissory note shall comply with such applicable regulations,
and the Optionee shall pay the unpaid principal and accrued interest, if any, to
the extent necessary to comply with such applicable regulations. The Corporation
in its sole discretion, may require the Optionee to pay the unpaid principal
balance of the promissory note and any accrued interest thereon upon termination
of the Optionee's Service for any reason, with or without cause.
10. Compliance with Laws and Regulations.
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(a) The exercise of this option and the issuance of the Option Shares
upon such exercise shall be subject to compliance by the Corporation and
Optionee with all applicable requirements of law relating thereto and with all
applicable regulations of any stock exchange (or the Nasdaq National Market if
applicable) on which the Common Stock may be listed for trading at the time of
such exercise and issuance.
(b) The inability of the Corporation to obtain approval from any
regulatory body having authority deemed by the Corporation to be necessary to
the lawful issuance and sale of any Common Stock pursuant to this option shall
relieve the Corporation of any liability with respect to the non-issuance or
sale of the Common Stock as to which such approval shall not have been obtained.
The Corporation, however, shall use its best efforts to obtain all such
approvals.
11. Successors and Assigns. Except to the extent otherwise provided in
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Paragraphs 3 and 6, the provisions of this Agreement shall inure to the benefit
of, and be binding upon, the Corporation and its successors and assigns and
Optionee, Optionee's assigns and the legal representatives, heirs and legatees
of Optionee's estate.
12. Notices. Any notice required to be given or delivered to the
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Corporation under the terms of this Agreement shall be in writing and addressed
to the Corporation at its principal corporate offices. Any notice required to be
given or delivered to Optionee shall be in writing and addressed to Optionee at
the address indicated on the Grant Notice. All notices shall be deemed effective
upon personal delivery or upon deposit in the U.S. mail, postage prepaid and
properly addressed to the party to be notified.
13. Construction. This Agreement and the option evidenced hereby are made
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and granted pursuant to the Plan and are in all respects limited by and subject
to the terms of the Plan. All decisions of the Plan Administrator with respect
to any question or issue arising under
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the Plan or this Agreement shall be conclusive and binding on all persons having
an interest in this option.
14. Integrated Agreement. The Grant Notice and this Agreement constitute
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the entire understanding and agreement between the Optionee and the Corporation
with respect to the subject matter contained herein or therein and supersedes
any prior agreements, understandings, restrictions, representations, or
warranties among the Optionee and the Corporation with respect to such subject
matter other than those as set forth or provided for herein or therein. To the
extent contemplated herein or therein, the provisions of the Grant Notice and
the Agreement shall survive any exercise of this option and shall remain in full
force and effect.
15. Governing Law. The interpretation, performance and enforcement of this
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Agreement shall be governed by the laws of the State of California without
resort to that State's conflict-of-laws rules.
16. Termination or Amendment. The Board may terminate or amend or this
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option at any time; provided, however, that except as provided in Paragraph 6 in
connection with a Corporate Transaction, no such termination or amendment may
adversely affect this option or any unexercised portion hereof without the
consent of the Optionee unless such termination or amendment is necessary to
comply with any applicable law or government regulation. No amendment or
addition to this Agreement shall be effective unless in writing.
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APPENDIX
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The following definitions shall be in effect under the Agreement:
A. Agreement shall mean this Stock Option Agreement.
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B. Board shall mean the Corporation's Board of Directors.
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C. Code shall mean the Internal Revenue Code of 1986, as amended.
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D. Common Stock shall mean the Corporation's common stock.
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E. Consultant shall mean a person engaged to provide consulting
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or advisory services other than as an Employee or a member of the Board or of
the board of directors of any other Parent or Subsidiary corporation) to the
Corporation (or any Parent or Subsidiary), provided that the identity of such
person, the nature of such services or the entity to which such services are
provided would not preclude the Corporation from offering or selling securities
to such person pursuant to the Plan in reliance on a Form S-8 Registration
Statement under the Securities Act.
F. Corporate Transaction shall mean an Ownership Change Event or
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a series of related Ownership Change Events (collectively, a "Transaction")
wherein the stockholders of the Corporation immediately before the Transaction
do not retain immediately after the Transaction, in substantially the same
proportions as their ownership of shares of the Corporation's voting stock
immediately before the Transaction, direct or indirect beneficial ownership of
more than fifty percent (50%) of the total combined voting power of the
outstanding voting stock of the Corporation or the corporation or corporations
to which the assets of the Corporation were transferred (the "Transferee
Corporation(s)"), as the case may be. For purposes of the preceding sentence,
indirect beneficial ownership shall include, without limitation, an interest
resulting from ownership of the voting stock of one or more corporations which,
as a result of the Transaction, own the Corporation or the Transferee
Corporation(s), as the case may be, either directly or through one or more
subsidiary corporations. The Board shall have the right to determine whether
multiple sales or exchanges of the voting stock of the Corporation or multiple
Ownership Change Events are related, and its determination shall be final,
binding and conclusive.
G. Corporation shall mean Agile Software Corporation, a Delaware
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corporation, and any successor corporation thereto.
H. Disability shall mean the permanent and total disability of
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the Optionee within the meaning of Code Section 22(e)(3).
I. Employee shall mean an individual who is in the employ of the
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Corporation (or any Parent or Subsidiary), subject to the control and direction
of the employer entity as to both the work to be performed and the manner and
method of performance.
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J. Exercise Date shall mean the date on which the option shall
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have been exercised in accordance with Paragraph 9 of the Agreement.
K. Exercise Price shall mean the exercise price per share as
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specified in the Grant Notice.
L. Expiration Date shall mean the date on which the option
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expires as specified in the Grant Notice.
M. Fair Market Value per share of Common Stock on any relevant
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date shall be determined in accordance with the following provisions:
(i) If the Common Stock is at the time traded on the Nasdaq
National Market, then the Fair Market Value shall be the closing selling price
per share of Common Stock on the date in question, as the price is reported by
the National Association of Securities Dealers on the Nasdaq National Market or
any successor system. If there is no closing selling price for the Common Stock
on the date in question, then the Fair Market Value shall be the closing selling
price on the last preceding date for which such quotation exists.
(ii) If the Common Stock is at the time listed on any Stock
Exchange, then the Fair Market Value shall be the closing selling price per
share of Common Stock on the date in question on the Stock Exchange determined
by the Plan Administrator to be the primary market for the Common Stock, as such
price is officially quoted in the composite tape of transactions on such
exchange. If there is no closing selling price for the Common Stock on the date
in question, then the Fair Market Value shall be the closing selling price on
the last preceding date for which such quotation exists.
(iii) If the Common Stock is at the time neither listed on any
Stock Exchange nor traded on the Nasdaq National Market, then the Fair Market
Value shall be determined by the Plan Administrator after taking into account
such factors as the Plan Administrator shall deem appropriate.
X. Xxxxx Date shall mean the date of grant of the option as
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specified in the Grant Notice.
X. Xxxxx Notice shall mean the Notice of Grant of Stock Options
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accompanying the Agreement, pursuant to which the Optionee has been informed of
the basic terms of the option evidenced hereby.
P. Involuntary Termination shall mean the termination of
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Optionee's Service by reason of:
(i) Optionee's involuntary dismissal or discharge by the
Corporation (or a Parent or Subsidiary employing Optionee) for reasons other
than Misconduct; or
(ii) Optionee's voluntary resignation following (1) a
reduction in Optionee's level of base salary by more than fifteen percent, (15%)
(2) a reduction in the Optionee's level of participation in any
corporate-performance based bonus or incentive
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programs (not including sales compensation or sales incentive programs) by more
than fifteen percent (15%) or (3) a relocation of Optionee's place of employment
by more than fifty (50) miles, provided and only if such reduction or relocation
is effected by the Corporation without Optionee's consent.
Q. Misconduct shall mean the commission of any act of fraud,
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embezzlement or dishonesty by Optionee, any unauthorized use or disclosure by
Optionee of confidential information or trade secrets of the Corporation (or any
Parent or Subsidiary), or any other intentional misconduct by Optionee adversely
affecting the business or affairs of the Corporation (or any Parent or
Subsidiary) in a material manner. The foregoing definition shall not be deemed
to be inclusive of all the acts or omissions which the Corporation (or any
Parent or Subsidiary) may consider as grounds for the dismissal or discharge of
Optionee or any other individual in the Service of the Corporation (or any
Parent or Subsidiary).
R. Non-Statutory Option shall mean an option not intended to
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satisfy the requirements of Code Section 422.
S. Option Shares shall mean the number of shares of Common Stock
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subject to the option.
T. Optionee shall mean the person to whom this option is granted
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as specified in the Grant Notice.
U. Ownership Change Event shall be deemed to have occurred if any
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of the following occurs with respect to the Corporation: (i) the direct or
indirect sale or exchange in a single or series of related transactions by the
stockholders of the Corporation of more than fifty percent (50%) of the voting
stock of the Corporation; (ii) a merger or consolidation in which the
Corporation is a party; (iii) the sale, exchange, or transfer of all or
substantially all of the assets of the Corporation; or (iv) a liquidation or
dissolution of the Corporation.
V. Parent shall mean any corporation (other than the Corporation)
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in an unbroken chain of corporations ending with the Corporation, provided each
corporation in the unbroken chain (other than the Corporation) owns, at the time
of the determination, stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
W. Plan shall mean the Corporation's 2000 Nonstatutory Stock
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Option Plan.
X. Plan Administrator shall mean either the Board or a committee
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of Board members, to the extent the committee is at the time responsible for the
administration of the Plan.
Y. Securities Act shall mean the Securities Act of 1933, as
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amended.
Z. Service shall mean an Optionee's employment or service with
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the Corporation (or Parent or Subsidiary corporation), whether in the capacity
of an Employee or a Consultant. Unless otherwise determined by the Board, an
Optionee's Service shall not be deemed to have terminated merely because of a
change in the capacity in which the Optionee renders Service to the Corporation
(or Parent or Subsidiary corporation) or a change in the Corporation (or Parent
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or Subsidiary corporation) for which the Optionee renders such Service, provided
that there is no interruption or termination of the Optionee's Service.
Furthermore, an Optionee's Service with the Corporation (or Parent or Subsidiary
corporation) shall not be deemed to have terminated if the Optionee takes any
military leave, sick leave, or other bona fide leave of absence approved by the
Corporation. Notwithstanding the foregoing, unless otherwise designated by the
Corporation or required by law, a leave of absence shall not be treated as
Service for purposes of determining vesting under the Optionee's option
agreement. An Optionee's Service shall be deemed to have terminated either upon
an actual termination of Service or upon the corporation for which the Optionee
performs Service ceasing to be a Parent or Subsidiary. Subject to the foregoing,
the Corporation, in its discretion, shall determine whether an Optionee's
Service has terminated and the effective date of such termination.
AA. Stock Exchange shall mean the American Stock Exchange or the
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New York Stock Exchange.
BB. Subsidiary shall mean any corporation (other than the
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Corporation) in an unbroken chain of corporations beginning with the
Corporation, provided each corporation (other than the last corporation) in the
unbroken chain owns, at the time of the determination, stock possessing fifty
percent (50%) or more of the total combined voting power of all classes of stock
in one of the other corporations in such chain.
CC. Vesting Schedule shall mean the vesting schedule specified in
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the Grant Notice pursuant to which the Optionee is to vest in the Option Shares
in a series of installments over his or her period of Service.
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