EXHIBIT (d)(4)
BRIO SOFTWARE
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NONSTATUTORY STOCK OPTION AGREEMENT
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1. Grant of Option. Brio Software, a Delaware corporation (the
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"Company"), hereby grants to the Optionee named in the Notice of Stock Option
Grant attached as Part I of this Agreement (the "Optionee"), an option (the
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"Option") to purchase a number of Shares, as set forth in the Notice of Stock
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Option Grant, at the exercise price per share set forth in the Notice of Stock
Option Grant (the "Exercise Price"`), subject to the terms and conditions of the
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2000 Non-Executive Stock Option Plan (the "Plan"), which is incorporated herein
by reference. (Capitalized terms not defined herein shall have the meanings
ascribed to such terms in the Plan.) In the event of a conflict between the
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terms and conditions of the Plan and the terms and conditions of this
Nonstatutory Stock Option Agreement, the terms and conditions of the Plan shall
prevail.
2. Exercise of Option.
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(a) Right to Exercise. This Option is exercisable during its
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term in accordance with the Vesting Schedule set out in the Notice of Stock
Option Grant and the applicable provisions of the Plan and this Nonstatutory
Stock Option Agreement. In the event of Optionee's death, Disability or other
termination of Optionee's employment or consulting relationship, the
exercisability of the Option is governed by the applicable provisions of the
Plan and this Nonstatutory Stock Option Agreement.
(b) Method of Exercise. This Option shall be exercisable by
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delivering to the Company a written notice of exercise (in the form of notice
approved by the Plan Administrator) which shall state Optionee's election to
exercise the Option, the number of Shares in respect of which the Option is
being exercised, and such other representations and agreements as to the
holder's investment intent with respect to such Shares as may be required by the
Company pursuant to the provisions of the Plan. Such written notice shall be
signed by Optionee and shall be delivered to the Company by such means as are
determined by the Plan Administrator in its discretion to constitute adequate
delivery. The written notice shall be accompanied by payment of the Exercise
Price. This Option shall be deemed to be exercised upon receipt by the Company
of such written notice accompanied by the Exercise Price.
As a condition to the exercise of this Option and as further
set forth in Section 10 of the Plan, Optionee agrees to make adequate provision
for federal, state or other tax withholding obligations, if any, which arise
upon the vesting or exercise of the Option, or disposition of Shares, whether by
withholding, direct payment to the Company, or otherwise.
The Company is not obligated, and will have no liability for
failure, to issue or deliver any Shares upon exercise of the Option unless such
issuance or delivery would comply with the Applicable Laws, with such compliance
determined by the Company in consultation with its legal counsel. This Option
may not be exercised until such time as the Plan has been approved by the
stockholders of the Company, or if the issuance of such Shares upon such
exercise or the method of payment of consideration for such shares would
constitute a violation of any applicable federal or state securities or other
law or regulation, including any rule under Part 221 of Title 12 of the Code of
Federal Regulations as promulgated by the Federal Reserve Board. As a condition
to the exercise of this Option, the Company may require Optionee to make any
representation and warranty to the Company as may be required by the Applicable
Laws. Assuming such compliance, for income tax purposes the Shares shall be
considered transferred to Optionee on the date on which the Option is exercised
with respect to such Shares.
3. Method of Payment. Payment of the aggregate Exercise Price
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shall be by any of the following, or a combination thereof, at the election of
the Optionee:
(a) cash;
(b) check; or
(c) delivery of a properly executed exercise notice
together with such other documentation as the Administrator and the broker, if
applicable, shall require to effect an exercise of the Option and delivery to
the Company of the sale or loan proceeds required to pay the exercise price.
4. Non-Transferability of Option. This Option may not be
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transferred in any manner otherwise than by will or by the laws of descent or
distribution and may be exercised during the lifetime of Optionee only by the
Optionee or a transferee permitted by Section 12 of the Plan. The terms of the
Plan and this Nonstatutory Stock Option Agreement shall be binding upon the
executors, administrators, heirs, successors and assigns of the Optionee.
5. Term of Option. This Option may be exercised only within the
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term set out in the Notice of Stock Option Grant, and may be exercised during
such term only in accordance with the Plan (with special reference made to
Section 9 of the Plan) and the terms of this Nonstatutory Stock Option
Agreement, including the Notice of Grant.
6. No Additional Employment Rights. Optionee understands and
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agrees that the vesting of Shares pursuant to the Vesting Schedule is earned
only by continuing as an Employee or Consultant at the will of the Company (not
through the act of being hired, being granted this Option or acquiring Shares
under this Agreement) and that the grant of the Option is not as consideration
for services you rendered to the Company prior to your Vesting Commencement
Date. Optionee further acknowledges and agrees that nothing in this Agreement,
nor in the Plan which is incorporated in this Nonstatutory Stock Option
Agreement by reference, shall confer upon Optionee any right with respect to
continuation as an Employee or Consultant with the Company, nor shall it
interfere in any way with his or her right or the Company's right to terminate
his or her employment or consulting relationship at any time, with or without
cause.
7. Termination Period. This Option may be exercised for 3 months
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after termination of Optionee's Continuous Service Status, or such longer period
as may be applicable upon death or Disability of Optionee as provided in the
Plan, but in no event later than the Expiration Date as provided above. Optionee
is responsible for keeping track of these exercise periods following termination
for any reason of his or her service relationship with the Company. The Company
will not provide further notice of such periods.
8. Tax Consequences. Set forth below is a brief summary of certain
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federal tax consequences relating to this Option under the law in effect as of
the date of grant. THIS SUMMARY IS NECESSARILY INCOMPLETE, DOES NOT ADDRESS
STATE AND LOCAL TAX CONSEQUENCES, AND THE TAX LAWS AND REGULATIONS ARE SUBJECT
TO CHANGE. OPTIONEE SHOULD CONSULT HIS OR HER OWN TAX ADVISER BEFORE EXERCISING
THIS OPTION OR DISPOSING OF THE SHARES.
(a) Exercising the Option. Since this Option does not
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qualify as an incentive stock option under Section 422 of the Code, the Optionee
may incur regular federal income tax liability upon exercise. The Optionee will
be treated as having received compensation income (taxable at ordinary income
tax rates) equal to the excess, if any, of the fair market value of the
Exercised Shares on the date
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of exercise over their aggregate Exercise Price. If Optionee is an Employee of
the Company, the Company will be required to withhold from Optionee's
compensation or collect from Optionee and pay to the applicable taxing
authorities an amount equal to a percentage of this compensation income at the
time of exercise.
(b) Disposition of Shares. If the Optionee holds the Option
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Shares for more than one year, gain realized on disposition of the Shares will
be treated as long-term capital gain for federal income tax purposes. The
long-term capital gain will be taxed for federal income tax at a maximum rate of
20%.
9. Effect of Agreement. Optionee acknowledges receipt of a copy of the
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Plan and represents that he or she is familiar with the terms and provisions
thereof (and has had an opportunity to consult counsel regarding the Option
terms), and hereby accepts this Option and agrees to be bound by its contractual
terms as set forth herein and in the Plan. Optionee agrees to accept as binding,
conclusive and final all decisions and interpretations of the Plan Administrator
regarding any questions relating to the Option. In the event of a conflict
between the terms and provisions of the Plan and the terms and provisions of the
Notice and this Agreement, the Plan terms and provisions shall prevail. The
Option, including the Plan, constitutes the entire agreement between Optionee
and the Company on the subject matter hereof and supersedes all proposals,
written or oral, and all other communications between the parties relating to
such subject matter. Acceptance of the terms of the Option is reflected by
Optionee's signature on the Notice of Grant.
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