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EXHIBIT 99.6
FORM OF STOCK OPTION ASSUMPTION AGREEMENT FOR ORCA SYSTEMS, INC.
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NETWORK APPLIANCE, INC.
STOCK OPTION ASSUMPTION AGREEMENT
ORCA SYSTEMS, INC.
1999 STOCK OPTION/STOCK ISSUANCE PLAN
OPTIONEE: _______________,
STOCK OPTION ASSUMPTION AGREEMENT effective as of the 14th day of
June, 2000.
WHEREAS, the undersigned individual ("Optionee") holds one or more
outstanding options to purchase shares of the common stock of Orca Systems,
Inc., a Delaware corporation ("Orca"), which were granted to Optionee under Orca
Systems, Inc. 1999 Stock Option/Stock Issuance Plan (the "Plan").
WHEREAS, each of those options is evidenced by a Stock Option
Agreement (the "Option Agreement") issued to Optionee under the Plan.
WHEREAS, Orca has been acquired by Network Appliance, Inc., a
California corporation ("NetApp"), through the merger of Orca Acquisition Corp.,
a Delaware corporation and a wholly owned subsidiary of NetApp ("Merger Sub"),
with and into Orca (the "Merger") pursuant to the Agreement and Plan of Merger
by and among NetApp, Orca and Merger Sub, dated June 1, 2000 (the "Merger
Agreement").
WHEREAS, the provisions of the Merger Agreement require the
obligations of Orca under each outstanding option under the Plan to be assumed
by NetApp at the consummation of the Merger and the holder of each outstanding
option to be issued an agreement evidencing the assumption of such option.
WHEREAS, pursuant to the provisions of the Merger Agreement, the
exchange ratio (the "Exchange Ratio") in effect for the Merger is 0.139209 of a
share of NetApp common stock ("NetApp Stock") for each outstanding share of Orca
common stock ("Orca Stock") (rounded down to the nearest whole number of shares
of NetApp Stock).
WHEREAS, the purpose of this Agreement is to evidence the
assumption by NetApp of the outstanding options held by Optionee at the time of
the consummation of the Merger (the "Effective Time") and to reflect certain
adjustments to those options which have become necessary in connection with
their assumption by NetApp in the Merger.
NOW, THEREFORE, it is hereby agreed as follows:
1. The number of shares of Orca Stock subject to the options held
by Optionee immediately prior to the Effective Time (the "Orca Options") and the
exercise price
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payable per share are set forth below. NetApp hereby assumes, as of the
Effective Time, all the duties and obligations of Orca under each of the Orca
Options. In connection with such assumption, the number of shares of NetApp
Stock purchasable under each Orca Option hereby assumed and the exercise price
payable thereunder have been adjusted to reflect the Exchange Ratio.
Accordingly, the number of shares of NetApp Stock subject to each Orca Option
hereby assumed shall be as specified for that option below, and the adjusted
exercise price payable per share of NetApp Stock under the assumed Orca Option
shall also be as indicated for that option below.
ORCA STOCK OPTIONS NETAPP ASSUMED OPTIONS
- ------------------------------------------------- -----------------------------------------------
# of Shares
# of Shares of Orca Exercise Price of NetApp Adjusted Exercise
Common Stock per Share Common Stock Price per Share
- -------------------------- ---------------------- -------------------- --------------------------
$ $
- -------------------------- ---------------------- -------------------- --------------------------
2. The intent of the foregoing adjustments to each assumed Orca
Option is to assure that the spread between the aggregate fair market value of
the shares of NetApp Stock purchasable under each such option and the aggregate
exercise price as adjusted pursuant to this Agreement will not, immediately
after the consummation of the Merger, be greater than the spread which existed,
immediately prior to the Merger, between the then aggregate fair market value of
the Orca Stock subject to the Orca Option and the aggregate exercise price in
effect at such time under the Option Agreement. Such adjustments are also
intended to preserve, immediately after the Merger, on a per share basis, the
same ratio of exercise price per option share to fair market value per share
which existed under the Orca Option immediately prior to the Merger.
3. Each Orca Option shall continue to have a maximum term of ten
(10) years from the date of grant, subject to earlier termination (as provided
in the applicable Option Agreement) following Optionee's cessation of service or
employment.
4. The following provisions shall govern each Orca Option hereby
assumed by NetApp:
(a) Unless the context otherwise requires, all
references in each Option Agreement and the applicable Plan (to the
extent incorporated into such Option Agreement) shall be adjusted
as follows: (i) all references to the "Company" shall mean NetApp,
(ii) all references to "Stock," "Common Stock" or "Shares" shall
mean shares of NetApp Stock, (iii) all references to the "Board"
shall mean the Board of Directors of NetApp and (iv) all references
to the "Committee" shall mean the Compensation Committee of the
NetApp Board of Directors.
(b) Except as modified by this Agreement, the grant
date and the expiration date of each assumed Orca Option and all
other provisions which govern either the exercise or the
termination of the assumed Orca Option shall remain the same as set
forth in the Option Agreement applicable to that option,
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and the provisions of the applicable Plan and the Option Agreement
shall accordingly govern and control Optionee's rights under this
Agreement to purchase NetApp Stock under the assumed Orca Option.
(c) Each Orca Option assumed by NetApp which was
originally designated as an Incentive Stock Option under the
federal tax laws shall retain such Incentive Stock Option status to
the maximum extent allowed by law.
(d) Each Orca Option hereby assumed by NetApp shall
continue to vest and become exercisable in accordance with the same
installment vesting schedule in effect for that option under the
applicable Option Agreement immediately prior to the Effective
Time; except, that the number of shares subject to each such
installment shall be adjusted to reflect the Exchange Ratio.
(e) For purposes of applying any and all provisions of
the Option Agreement and the applicable Plan relating to Optionee's
status as an employee or a consultant of Orca, Optionee shall be
deemed to continue in such status as an employee or a consultant
for so long as Optionee renders services as an employee or a
consultant to NetApp or any present or future majority-owned NetApp
subsidiary. Accordingly, the provisions of the Option Agreement
governing the termination of the assumed Orca Options upon
Optionee's cessation of service as an employee or a consultant of
Orca shall hereafter be applied on the basis of Optionee's
cessation of employee or consultant status with NetApp and its
subsidiaries, and each assumed Orca Option shall accordingly
terminate, within the designated time period in effect under the
Option Agreement for that option, following such cessation of
employee or consultant status.
(f) The adjusted exercise price payable for the NetApp
Stock subject to each assumed Orca Option shall be payable in any
of the forms authorized under the Option Agreement applicable to
that option. For purposes of determining the holding period of any
shares of NetApp Stock delivered in payment of such adjusted
exercise price, the period for which such shares were held as Orca
Stock prior to the Merger shall be taken into account.
(g) In order to exercise each assumed Orca Option,
Optionee must deliver to NetApp a written notice of exercise in
which the number of shares of NetApp Stock to be purchased
thereunder must be indicated. The exercise notice must be
accompanied by payment of the adjusted exercise price payable for
the purchased shares of NetApp Stock and should be delivered to
NetApp at the following address:
Network Appliance, Inc.
495 East Java Drive
Sunnyvale, CA 94089
Attention: Janice Mahoney
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5. Except to the extent specifically modified by this Option
Assumption Agreement, all of the terms and conditions of each Option Agreement
as in effect immediately prior to the Merger shall continue in full force and
effect and shall not in any way be amended, revised or otherwise affected by
this Stock Option Assumption Agreement.
IN WITNESS WHEREOF, Network Appliance, Inc. has caused this Stock
Option Assumption Agreement to be executed on its behalf by its duly-authorized
officer as of the 14th day of June, 2000.
NETWORK APPLIANCE, INC.
By:
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DANIEL J. WARMENHOVEN, PRESIDENT
ACKNOWLEDGMENT
The undersigned acknowledges receipt of the foregoing Stock Option
Assumption Agreement and understands that all rights and liabilities with
respect to each of his or her Orca Options hereby assumed by NetApp are as set
forth in the Option Agreement, the applicable Plan and such Stock Option
Assumption Agreement.
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, OPTIONEE
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DATED: , 2000
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