Option Amendment Agreement
Exhibit (d)(9)
This Option Amendment Agreement (this “Agreement”) is entered into by and between Progress Software Corporation, a Massachusetts
corporation (“Progress”), and _________(“Employee”), an employee of
Progress, and is effective on the date of the last signature below.
WHEREAS, Progress and Employee wish to amend the exercise price of certain options to purchase
shares of Progress common stock as set forth herein and to make related agreements;
NOW, THEREFORE, in consideration of the foregoing premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Progress and Employee
hereby agree as follows:
1. Definitions. The following terms shall have the following meanings for purposes of
this Agreement:
“Amended Exercise Price” of any Option shall mean the fair market value of the
Progress common stock on the measurement date for such Option for tax and accounting purposes, as
set forth on Exhibit A hereto.
“Options” shall mean the options granted by Progress to Employee to purchase shares of
Progress common stock that are set forth on Exhibit A hereto.
“Original Exercise Price” of any Option shall mean the exercise price of such Option
as in effect immediately before the execution of this Agreement, as set forth on Exhibit A
hereto.
2. Increase
in Exercise Price of Options. Each outstanding Option held by
Employee, if any, is
hereby amended to increase the exercise price of such Option from the Original Exercise Price to
the Amended Exercise Price for such Option, as set forth on
Exhibit A
hereto. Except for the increased exercise price per share,
each outstanding Option held by Employee, if any, will continue to remain subject to the same terms and conditions as in
effect for that Option immediately prior to the date hereof.
Accordingly, each outstanding amended Option, if any, will
vest in accordance with the same vesting schedule measured from the same vesting commencement date,
and it will have the same exercise period, option term and other conditions currently in effect for
that Option.
3. Payment to Progress. (a) Employee agrees to pay Progress promptly (and in any
event such amount shall be due and payable ten business days following written demand by Progress) an amount equal to
$_________(the “Payment
Amount”), such amount to be reduced as set forth in Section
3(c) of this Agreement, which Payment Amount Progress has calculated as the sum of the
amounts determined by multiplying (x) the number of shares exercised under each Option times (y)
the difference between the Amended Exercise Price and the Original Exercise Price, as more fully
set forth on Exhibit A. Employee may pay the Payment Amount by any one or more of
the following methods: (i) in cash or by check, (ii) by the
transfer to Progress of shares of
Progress common stock having an aggregate Market Value, as defined below, not less than such
amount, (iii) by the cancellation of vested stock options held by
Employee having an aggregate In-the-Money Value, as defined below,
not less than such amount, or (iv)
with Progress’s consent, by
the delivery of other consideration equal in value to such amount. Any
payment under this Section 3(a) is not in satisfaction of any legal
obligation, and no money or property is being received in exchange.
(b) For purposes of this paragraph, “Market Value” as of any date shall mean the
average of the high and low sale prices per share of Progress common stock as reported by the
Nasdaq Global Select Market (or on such other exchange or market on which the Progress common stock
is then traded, or, if there is no such exchange or market, as determined in good faith by the
Board of Directors of Progress) over the ten trading days preceding such date, and the
“In-the-Money Value” of any stock option as of any date shall mean an amount equal to the
product of (x) the number of shares of Progress common stock subject to such stock option
multiplied by (y) the excess, if any, of the Market Value of the Progress common stock on such date
over the per share exercise price of such option (which, in the case of an Option, shall be the
Amended Exercise Price of such Option).
(c) If Employee has already paid or has incurred an obligation to pay federal or state taxes
(including penalties and interest) as a result of the exercise of any Option, the Payment Amount
payable in respect of such Option will be reduced by the amount of the taxes paid or incurred on
that portion of the income recognized upon such exercise as is equal to the product of (x) the
number of shares exercised under the Option multiplied by (y) the excess of the Amended Exercise
Price over the Original Exercise Price.
(d)
It is the understanding of the parties that, regardless of the manner
of payment chosen by Employee under Section 3(a), Employee shall have
no taxable income pursuant to the transaction contemplated by Section
3(a) that is reportable by Progress to any taxing authority.
4. Amendment; Waiver. This Agreement may be amended, modified or supplemented by the
parties hereto only by a written instrument signed by Progress and Employee. The terms and
conditions of this Agreement may be waived only by a written instrument signed by the party waiving
compliance.
5. Governing Law. This Agreement shall be governed by, and construed and enforced in
accordance with, the substantive laws of the Commonwealth of Massachusetts, without regard to its
principles of conflicts of laws.
6. Entire Agreement, Assignment, etc. This Agreement supersedes all prior written and
oral negotiations, discussions, communications, understandings, arrangements and agreements between
the parties with respect to the specific matters set forth in this
Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the specific matters set forth in this
Agreement. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
permitted assigns. This Agreement is personal to Employee and shall not be assignable by Employee,
by operation of law or otherwise.
7. Counterparts. This Agreement may be executed in one or more counterparts, all of
which together shall constitute one and the same Agreement.
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In Witness Whereof, the parties have caused this Agreement to be executed as an agreement
under seal and is effective on the date of the last signature below.
| PROGRESS SOFTWARE CORPORATION | ||||
| By: | ||||
| Title: | ||||
| Printed Name: | ||||
| Date Signed: | ||||
| EMPLOYEE: | ||||
| [Name] | ||||
| Date Signed: | ||||
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Exhibit A
| Original Option Terms | ||||||||||||||||||||||||||||
| Value Lost | ||||||||||||||||||||||||||||
| Number | Original | Amended | Number of | plus | ||||||||||||||||||||||||
| Grant | of Shares | Exercise | Exercise | Shares | Value Lost in | Payment | Payment | |||||||||||||||||||||
| Date | Granted | Price | Price | Exercised | Repricing | Amount | Amount | |||||||||||||||||||||
| $ | ||||||||||||||||||||||||||||
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