Exhibit 10.19
FORM OF NONSTATUTORY STOCK OPTION
AGREEMENT
This Nonstatutory Stock Option Agreement is made as of
between BMC Software, Inc., a Delaware corporation (the
“Company”), and the recipient
(“Executive”).
To carry out the purposes of the BladeLogic, Inc. 2007 Stock Option
and Incentive Plan (the “Plan”), by affording Executive
the opportunity to purchase shares of common stock, par value $.01,
of the Company (“Stock”), and in consideration of the
mutual agreements and other matters set forth herein, in the Plan,
and in that certain Employment Agreement by and between the Company
and Executive, as the same may be amended from time to time (the
“Employment Agreement”), the Company and Executive
hereby agree as follows:
1. Grant of
Option . The Company hereby irrevocably grants
to Executive the right and option (“Option”) to
purchase all or any part of an aggregate of XXXX shares of Stock,
on the terms and conditions set forth herein and in the Plan, which
Plan is incorporated herein by reference as a part of this
Agreement. This Option shall not be treated as an incentive stock
option within the meaning of section 422(b) of the Internal Revenue
Code of 1986, as amended (the “Code”).
2. Purchase
Price . The purchase price of Stock purchased
pursuant to the exercise of this Option shall be $XXXX per
share. For all purposes of this Agreement, fair market value of
Stock shall be determined in accordance with the provisions of the
Plan.
3. Exercise
of Option . Subject to the earlier expiration of
this Option as herein provided, this Option may be exercised, by
written notice (in the form prescribed by the Company from time to
time) to the Company at its principal executive office addressed to
the attention of the President or the Treasurer, at any time and
from time to time after the date of grant hereof, but, this Option
shall not be exercisable for more than a percentage of the
aggregate number of shares offered by this Option determined in
accordance with the following schedule:
This Option becomes exercisable with respect to the first 2.08333%
of the shares subject to this Option when you complete 1 month of
continuous service from the Date of Grant and with respect to an
additional 1/48 th
of shares subject to this Option when you complete each month of
continuous service thereafter.
Notwithstanding the foregoing, if, within the 12-month period
beginning on the date upon which a Change of Control occurs,
Executive experiences a Termination of Employment without Cause or
due to a resignation by the Executive within 60 days of an event
that constitutes Good Reason, then this Option shall become
immediately and fully exercisable on the date of such termination.
For purposes of the preceding sentence, the terms “Change of
Control,” “Cause” and “Good Reason”
shall have the meanings assigned to such terms in the Employment
Agreement. Additionally, in the event Executive takes an unpaid
leave of absence from the Company (1) Executive’s right
to exercise this Option shall be suspended three months after the
beginning of such leave, (2) Executive’s right to
exercise this Option shall be reinstated if Executive returns to
active employment with the Company within 12 months after the
beginning of such leave, and (3) if Executive does not return
to active employment with the Company within 12 months after the
beginning of such leave, then, for purposes of this Option,
Executive shall be
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considered to have
experienced a Termination of Employment on the date such leave
began. Further, notwithstanding the exercise schedule set forth
above, (i) while Executive is on an unpaid leave of absence,
further vesting of shares stops and this Option is exercisable (to
the extent provided in the preceding sentence) only as to the
number of shares Executive was entitled to purchase hereunder as of
the date such leave began, and (ii) if Executive returns to
active employment with the Company within 12 months after the
beginning of such leave, then the exercise schedule set forth above
shall be reinstated (subject to the provisions of clause
(i) of this sentence).
This Option is not transferable otherwise than by bequest or the
laws of descent and distribution. This Option may be exercised only
while Executive remains an employee of the Company and will
terminate and cease to be exercisable upon Executive’s
Termination of Employment, except that:
(a) If the
Termination of Employment occurs by reason of Disability, then this
Option may be exercised by Executive (or Executive’s estate
or the person who acquires this Option by will or the laws of
descent and distribution or otherwise by reason of the death of
Executive) at any time during the period of one year following such
termination, but only as to the number of shares Executive was
entitled to purchase hereunder as of the date of such Termination
of Employment.
(b) If Executive
dies while in the employ of the Company, then Executive’s
estate, or the person who acquires this Option by will or the laws
of descent and distribution or otherwise by reason of the death of
Executive, may exercise this Option at any time during the period
of one year following the date of Executive’s death, as
follows: (i) if Executive had attained age 65 at the time of
Executive’s death, then this Option may be exercised in full;
and (ii) if Executive had not attained age 65 at the time of
Executive’s death, then this Option may be exercised only as
to the number of shares Executive was entitled to purchase
hereunder as of the date of Executive’s death.
(c) If the
Termination of Employment is for any reason other than as described
in (a) or (b) above, then, unless such Termination of
Employment is for Cause (as such term is defined in the Employment
Agreement as in effect on its original effective date) or as
otherwise provided in Paragraph 7 below, this Option may be
exercised by Executive at any time during the period of one year
following such termination, or by Executive’s estate (or the
person who acquires this Option by will or the laws of descent and
distribution or otherwise by reason of the death of Executive)
during a period of one year following Executive’s death if
Executive dies during such one year period, but in each case only
as to the number of shares Executive was entitled to purchase
hereunder upon exercise of this Option as of the date of such
Termination of Employment.
This Option shall not be exercisable in any event after the
expiration of six years from the date of grant hereof, and
this Option shall not become exercisable with respect to any
additional shares after the Executive’s Termination of
Employment. Except as provided in Paragraph 4, the purchase price
of shares as to which this Option is exercised shall be paid in
full at the time of exercise in cash (including check, bank draft
or money order payable to the order of the Company). No fraction of
a share of Stock shall be issued by the Company upon exercise of an
Option or accepted by the Company in payment of the purchase price
thereof; rather, Executive shall provide a cash payment for such
amount as is necessary to
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effect the issuance and
acceptance of only whole shares of Stock. Unless and until a
certificate or certificates representing such shares shall have
been issued by the Company to Executive, Executive (or the person
permitted to exercise this Option in the event of Executive’s
death) shall not be or have any of the rights or privileges of a
stockholder of the Company with respect to shares acquirable upon
an exercise of this Option.
4. Cashless
Exercise . Executive (or the person permitted to
exercise this Option in the event of Executive’s death) may
direct, in a properly executed written notice, a cashless exercise
of this Option pursuant to the procedures established by the
Committee and in effect on the date of such exercise of this
Option. Notwithstanding the foregoing, the Company shall not be
required to comply with, and may unilaterally terminate, the right
of Executive (or such person) to request a cashless exercise of
this Option if, as a result of a change in the accounting rules and
regulations applicable to the Company, or the interpretation
thereof, compliance with such provisions will result in the
imposition of adverse financial reporting requirements on the
Company.
5.
Withholding of Tax . To the extent that
the exercise of this Option or the disposition of shares of Stock
acquired by exercise of this Option results in compensation income
to Executive for federal, state or foreign income tax purposes,
Executive shall deliver to the Company at the time of such exercise
or disposition such amount of money or shares of Stock as the
Company may require to meet its obligation under applicable tax
laws or regulations, and, if Executive fails to do so, the Company
is authorized to withhold from any cash or Stock remuneration then
or thereafter payable to Executive any tax required to be withheld
by reason of such resulting compensation income. Upon an exercise
of this Option, the Company is further authorized in its discretion
to satisfy any such withholding requirement out of any cash or
shares of Stock distributable to Executive upon such exercise.
6. Status of
Stock . Until the shares of Stock acquirable
upon the exercise of this Option have been registered for issuance
under the Securities Act of 1933, as amended (the
“Act”), the Company will not issue such shares unless
the holder of this Option provides the Company with a written
opinion of legal counsel, who
