Exhibit 10.1
BLADELOGIC, INC.
Third Amended and Restated 2001
Stock Option and Grant Plan
SECTION 1. GENERAL PURPOSE OF THE PLAN;
DEFINITIONS
The name of this plan is the
BladeLogic, Inc. 2001 Stock Option and Grant Plan (as amended and
restated, the “Plan”). The purpose of the Plan is to
encourage and enable the officers, employees, directors,
consultants and other key persons of BladeLogic, Inc., a Delaware
corporation (the “Company”) and its Subsidiaries, upon
whose judgment, initiative and efforts the Company largely depends
for the successful conduct of its business, to acquire a
proprietary interest in the Company. It is anticipated that
providing such persons with a direct stake in the Company’s
welfare will assure a closer identification of their interests with
those of the Company, thereby stimulating their efforts on the
Company’s behalf and strengthening their desire to remain
with the Company.
The following terms shall be defined
as set forth below:
“ Act ” means the
Securities Act of 1933, as amended, and the rules and regulations
thereunder.
“ Award ” or
“ Awards, ” except where referring to a
particular category of grant under the Plan, shall include
Incentive Stock Options, Non-Qualified Stock Options, Restricted
Stock Awards, Unrestricted Stock Awards, or any combination of the
foregoing.
“ Board ” means
the Board of Directors of the Company or its successor
entity.
“ Cause ” means a
vote of the Board resolving that the grantee should be dismissed as
a result of (i) the commission of any act by a grantee constituting
financial dishonesty against the Company (which act would be
chargeable as a crime under applicable law); (ii) a grantee’s
engaging in any other act of dishonesty, fraud, intentional
misrepresentation, moral turpitude, illegality or harassment which,
as determined in good faith by the Board, would: (A)
materially adversely affect the business or the reputation of the
Company with its current or prospective customers, suppliers,
lenders and/or other third parties with whom it does or might do
business; or (B) expose the Company to a risk of civil or criminal
legal damages, liabilities or penalties; (iii) the repeated failure
by a grantee to follow the directives of the Company’s chief
executive officer or Board or (iv) any material misconduct,
violation of the Company’s policies, or willful and
deliberate non-performance of duty by the grantee in connection
with the business affairs of the Company.
“ Code ” means
the Internal Revenue Code of 1986, as amended, and any successor
Code, and related rules, regulations and
interpretations.
“ Committee ” has
the meaning specified in Section 2.
“ Effective Date
” means the date on which the Plan is approved by
stockholders as set forth at the end of this Plan.
“ Exchange Act ”
means the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder.
“ Fair Market Value
” of the Stock on any given date means the fair market value
of the Stock determined in good faith by the Committee;
provided , however , that (i) if the Stock trades on
a national securities exchange, the Fair Market Value on any given
date is the closing sale price on such date; (ii) if the Stock does
not trade on any national securities exchange but is admitted to
trading on the National Association of Securities Dealers, Inc.
Automated Quotation System (“NASDAQ”), the Fair Market
Value on any given date is the closing sale price as reported by
NASDAQ on such date; or if no such closing sale price information
is available, the average of the highest bid and lowest asked
prices for the Stock reported on such date. For any date that is
not a trading day, the Fair Market Value of the Stock for such date
will be determined by using the closing sale price or the average
of the highest bid and lowest asked prices, as appropriate, for the
immediately preceding trading day. The Committee can substitute a
particular time of day or other measure of closing sale price if
appropriate because of changes in exchange or market procedures.
Notwithstanding the foregoing, if the date for which Fair Market
Value is determined is the first day when trading prices for the
Stock are reported on NASDAQ or trading on a national securities
exchange, the Fair Market Value shall be the “Price to the
Public” (or equivalent) set forth on the cover page for the
final prospectus relating to the Company’s Initial Public
Offering.
“ Good Reason ”
means the occurrence of any of the following events: (i) a
substantial adverse change in the nature or scope of the
grantee’s responsibilities, authorities, powers, functions or
duties; (ii) a reduction in the grantee’s annual base salary
except for across-the-board salary reductions similarly affecting
all or substantially all management employees; or (iii) the
relocation of the offices at which the grantee is principally
employed to a location more than 50 miles from such
offices.
“ Incentive Stock
Option ” means any Stock Option designated and qualified
as an “incentive stock option” as defined in
Section 422 of the Code.
“ Initial Public
Offering ” means the consummation of the first fully
underwritten, firm commitment public offering pursuant to an
effective registration statement under the Act covering the offer
and sale by the Company of its equity securities, as a result of or
following which the Stock will be publicly held.
“ Non-Qualified Stock
Option ” means any Stock Option that is not an Incentive
Stock Option.
“ Option ” or
“ Stock Option ” means any option to purchase
shares of Stock granted pursuant to Section 5.
“ Restricted Stock
Award ” means any Award granted pursuant to
Section 6.
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“ Stock ” means
the Common Stock, par value $.001 per share, of the Company,
subject to adjustments pursuant to Section 3.
“ Subsidiary ”
means any corporation or other entity (other than the Company) in
any unbroken chain of corporations or other entities beginning with
the Company if each of the corporations or entities (other than the
last corporation or entity in the unbroken chain) owns stock or
other interests possessing 50 percent or more of the economic
interest or 50 percent or more of the total combined voting power
of all classes of stock or other interests in one of the other
corporations or entities in the chain.
“ Unrestricted Stock
Award ” means any Award granted pursuant to
Section 7.
SECTION 2.
ADMINISTRATION OF PLAN;
COMMITTEE AUTHORITY TO SELECT GRANTEES AND DETERMINE
AWARDS
(a)
Administration
of Plan . The Plan shall be
administered by the Board, or at the discretion of the Board, by a
committee of the Board, comprised, except as contemplated by
Section 2(c), of not less than two Directors. All references
herein to the Committee shall be deemed to refer to the group then
responsible for administration of the Plan at the relevant time
(i.e., either the Board of Directors or a committee or committees
of the Board, as applicable).
(b)
Powers of
Committee . The Committee shall have
the power and authority to grant Awards consistent with the terms
of the Plan, including the power and authority:
(i)
to select the
individuals to whom Awards may from time to time be
granted;
(ii)
to determine the
time or times of grant, and the extent, if any, of Incentive Stock
Options, Non-Qualified Stock Options, Restricted Stock Awards,
Unrestricted Stock Awards, or any combination of the foregoing,
granted to any one or more grantees;
(iii)
to determine the
number of shares of Stock to be covered by any Award;
(iv)
to determine and
modify from time to time the terms and conditions, including
restrictions, not inconsistent with the terms of the Plan, of any
Award, which terms and conditions may differ among individual
Awards and grantees, and to approve the form of written instruments
evidencing the Awards;
(v)
to accelerate at
any time the exercisability or vesting of all or any portion of any
Award;
(vi)
to impose any
limitations on Awards granted under the Plan, including limitations
on transfers, repurchase provisions and the like and to exercise
repurchase rights or obligations;
(vii)
subject to the
provisions of Section 5(a)(ii), to extend at any time the
period in which Stock Options may be exercised;
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(viii)
to determine at
any time whether, to what extent, and under what circumstances
distribution or the receipt of Stock and other amounts payable with
respect to an Award shall be deferred either automatically or at
the election of the grantee and whether and to what extent the
Company shall pay or credit amounts constituting interest (at rates
determined by the Committee) or dividends or deemed dividends on
such deferrals; and
(ix)
at any time to
adopt, alter and repeal such rules, guidelines and practices for
administration of the Plan and for its own acts and proceedings as
it shall deem advisable; to interpret the terms and provisions of
the Plan and any Award (including related written instruments); to
make all determinations it deems advisable for the administration
of the Plan; to decide all disputes arising in connection with the
Plan; and to otherwise supervise the administration of the
Plan.
All decisions and interpretations of
the Committee shall be binding on all persons, including the
Company and Plan grantees.
(c)
Delegation of
Authority to Grant Awards . The Committee, in its
discretion, may delegate to the Chief Executive Officer of the
Company all or part of the Committee’s authority and duties
with respect to the granting of Awards at Fair Market Value, and in
the event of such delegation, such Chief Executive Officer shall be
deemed a one-person Committee of the Board. Any such delegation by
the Committee shall include a limitation as to the amount of Awards
that may be granted during the period of the delegation and shall
contain guidelines as to the determination of the exercise price of
any Option, the conversion ratio or price of other Awards and the
vesting criteria. The Committee may revoke or amend the terms of a
delegation at any time but such action shall not invalidate any
prior actions of the Committee’s delegate or delegates that
were consistent with the terms of the Plan.
(d)
Indemnification
. Neither the
Board nor the Committee, nor any member of either or any delegatee
thereof, shall be liable for any act, omission, interpretation,
construction or determination made in good faith in connection with
the Plan, and the members of the Board and the Committee (and any
delegatee thereof) shall be entitled in all cases to
indemnification and reimbursement by the Company in respect of any
claim, loss, damage or expense (including, without limitation,
reasonable attorneys’ fees) arising or resulting therefrom to
the fullest extent permitted by law and/or under any
directors’ and officers’ liability insurance coverage
which may be in effect from time to time.
SECTION 3.
STOCK ISSUABLE UNDER THE PLAN;
MERGERS; SUBSTITUTION
(a)
Stock
Issuable . The maximum number of
shares of Stock reserved and available for issuance under the Plan
shall be 14,500,000 shares of Common Stock, subject to adjustment
as provided in Section 3(b). For purposes of this limitation,
the shares of Stock underlying any Awards which are forfeited,
canceled, reacquired by the Company, satisfied without the issuance
of Stock or otherwise terminated (other than by exercise) shall be
added back to the shares of Stock available for issuance under the
Plan. Subject to such overall limitation, shares of Stock may be
issued up to such maximum number pursuant to any type or types of
Award; provided, however, that from and after the date the Company
becomes subject to the deduction limit
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imposed by
Section 162(m) of the Code, Stock Options with respect to no
more than 500,000 shares of Stock may be granted to any one
individual grantee during any one calendar year period. The shares
available for issuance under the Plan may be authorized but
unissued shares of Stock or shares of Stock reacquired by the
Company and held in its treasury.
(b)
Changes in
Stock . Subject to
Section 3(c) hereof, if, as a result of any reorganization,
recapitalization, reclassification, stock dividend, stock split,
reverse stock split or other similar change in the Company’s
capital stock, the outstanding shares of Stock are increased or
decreased or are exchanged for a different number or kind of shares
or other securities of the Company, or additional shares or new or
different shares or other securities of the Company or other
non-cash assets are distributed with respect to such shares of
Stock or other securities, or if, as a result of any merger,
consolidation or sale of all or substantially all of the assets of
the Company, the outstanding shares of Stock are converted into or
exchanged for a different number or kind of securities of the
Company or any successor entity (or a parent or subsidiary
thereof), the Committee shall make an appropriate or proportionate
adjustment in (i) the maximum number of shares reserved for
issuance under the Plan, (ii) the number of Stock Options that can
be granted to any one individual grantee, (iii) the number and kind
of shares or other securities subject to any then outstanding
Awards under the Plan, (iv) the repurchase price per share subject
to each outstanding Restricted Stock Award, and (v) the exercise
price and/or exchange price for each share subject to any then
outstanding Stock Options under the Plan, without changing the
aggregate exercise price (i.e., the exercise price multiplied by
the number of Stock Options) as to which such Stock Options remain
exercisable. The adjustment by the Committee shall be final,
binding and conclusive. No fractional shares of Stock shall be
issued under the Plan resulting from any such adjustment, but the
Committee in its discretion may make a cash payment in lieu of
fractional shares.
The Committee may also adjust the
number of shares subject to outstanding Awards and the exercise
price and the terms of outstanding Awards to take into
consideration material changes in accounting practices or
principles, extraordinary dividends, acquisitions or dispositions
of stock or property or any other event if it is determined by the
Committee that such adjustment is appropriate to avoid distortion
in the operation of the Plan, provided that no such
adjustment shall be made in the case of an Incentive Stock Option,
without the consent of the grantee, if it would constitute a
modification, extension or renewal of the Option within the meaning
of Section 424(h) of the Code.
(c)
Mergers and
Other Sale Events . In the case of and subject
to the consummation of any Sale Event (as defined below), (i) the
Committee may provide in its sole discretion for the acceleration,
in whole or in part, of any outstanding Options in connection with
such Sale Event and (ii) the Plan and all outstanding Options
issued hereunder shall terminate upon the effective time of any
such Sale Event, unless provision is made in connection with such
transaction in the sole discretion of the parties thereto for the
assumption or contin
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