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Exhibit
10.40
B LUE C
OAT S YSTEMS , I NC
.
2007 S TOCK
I NCENTIVE P LAN
S TOCK O
PTION A GREEMENT
(U.S. E
MPLOYEES )
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| Grant of
Option |
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You have
been granted an option to purchase up to the number of Common
Shares specified in the Notice of Stock Option Grant (“Option
Shares”), effective on the Date of Grant set forth in such
Notice of Stock Option Grant. Terms not defined in this Stock
Option Agreement shall have the meaning set forth in the 2007 Stock
Incentive Plan (the “Plan”) incorporated herein by
reference.. |
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| Tax
Treatment |
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This option
is intended to be an incentive stock option under Section 422 of
the Internal Revenue Code (or ISO) or a nonstatutory option or
NSO), as provided in the Notice of Stock Option Grant. However,
notwithstanding any designation in such Notice as an ISO, to the
extent that the aggregate fair market value (determined as of the
applicable Date of Grant) of the Common Stock for which one or more
options granted to you may for the first time become exercisable
exceeds the $100,000 or as otherwise required by federal tax laws,
this option shall be treated as an NSO. You are responsible for any
taxes owed by you in connection with this option. |
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| Vesting |
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This option
becomes exercisable in installments, as shown in the Notice of
Stock Option Grant. No additional shares become exercisable after
your service as a Non-Employee Member of the Board or an Employee
or Consultant of the Company or a Parent, Subsidiary or Affiliate
(“Service”) has terminated for any reason. |
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| Term |
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This option
expires in any event on the 10 th anniversary of the Date of Grant, as shown in the Notice of
Stock Option Grant. (It will expire earlier if your Service
terminates, as described below.) If the expiration date of your
option is not a business day and you wish to exercise your option
by the expiration date, it is your responsibility to ensure that
you have validly exercised your option prior to the expiration
date. This option may also be subject to earlier termination upon a
Change in Control or other corporate events, as described in the
Plan. |
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| Regular
Termination |
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If your
Service terminates for any reason except death, Permanent
Disability or Cause, then this option will expire on the date 3
months after your termination date. The Company determines when
your Service terminates for this purpose. |
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| Permanent
Disability |
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If your Service terminates because of
your Permanent Disability, then this option will expire on the date
12 months after your termination date. The Company determines when
your Service terminates for this purpose.
Permanent Disability means that you are
unable to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can
be expected to result in death or which has lasted, or can be
expected to last, for a continuous period of not less than 12
months.
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| Death |
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If you die
while in Service, the option will expire on the date 12 months
after the date of death. |
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| Misconduct |
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If your
Service terminates for Cause, then this option will terminate
immediately and cease to be outstanding. |
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| Change in
Control |
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In the event of a Change in Control,
then the vesting of this option will not automatically accelerate
unless this option is, in connection with the Change in Control,
not to be assumed by the successor corporation (or its parent) or
to be replaced with a comparable option for shares of the capital
stock of the successor corporation (or its parent). The
determination of option comparability will be made by the
Committee, and its determination will be final, binding and
conclusive.
The exercisability of this option may
also be accelerated in the event of certain reorganizations, as
provided under Section 12.3 of the Plan.
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| Involuntary Termination After a Change in
Control |
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If in
connection with a Change in Control the option is assumed by the
successor corporation (or its parent) and you experience an
Involuntary Termination within eighteen months following such
Change in Control, the vesting of this option will automatically
accelerate so that this option will, immediately before the
effective date of the Involuntary Termination, become fully
exercisable for all of the Common Shares at the time subject to
this option and may be exercised for any or all of those shares as
fully-vested Common Shares. |
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