Exhibit 10.10
MSC.SOFTWARE
CORPORATION
2006 PERFORMANCE INCENTIVE
PLAN
NONQUALIFIED STOCK OPTION
AGREEMENT
FOR NON-U.S.
EMPLOYEES
THIS NONQUALIFIED STOCK OPTION
AGREEMENT (this “
Option Agreement ”) dated _____________________ by and
between MSC.SOFTWARE CORPORATION , a Delaware corporation
(the “ Corporation ”), and
___________________________ (the “ Grantee ”)
evidences the nonqualified stock option (the
“Option” ) granted by the Corporation to the
Grantee as to the number of shares of the Corporation’s
Common Stock first set forth below.
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Number of Shares of Common
Stock :
1
Award Date:
Exercise Price per
Share :
1
$
Expiration
Date: 1,2
Vesting
1,2
The Option
shall become vested as to 25% of the total number of shares of
Common Stock subject to the Option on the first anniversary of the
Award Date. The remaining 75% of the total number of shares of
Common Stock subject to the Option shall become vested and
exercisable as to an additional 25% on and after each of the
second, third, and fourth anniversaries of the Award
Date.
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The Option is granted under the
MSC.Software Corporation 2006 Performance Incentive Plan (the
“ U.S. Plan ”) and any sub-plan to the U.S. Plan
(collectively, the “ Plan ”) and subject to the
Terms and Conditions of Nonqualified Stock Option (the “
Terms ”) attached to this Option Agreement
(incorporated herein by this reference), any appendix to this
Option Agreement for the Grantee’s country of residence (the
“ Appendix ”) and to the Plan. Capitalized terms
are defined in the Plan if not defined herein. The parties agree to
the terms of the Option set forth herein. The Grantee acknowledges
receipt of a copy of the Terms, the Appendix (if any), the Plan and
the Prospectus for the Plan.
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“GRANTEE”
Signature
Print Name
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MSC.SOFTWARE CORPORATION
a Delaware corporation
By:_______________________________________________
Print
Name:________________________________________
Title:_____________________________________________
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TERMS AND CONDITIONS OF
NONQUALIFIED STOCK OPTION
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1
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Subject to
adjustment under Section 7.1 of the U.S. Plan.
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2
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Subject to early
termination under Section 4 of the Terms and Section 7.4
of the U.S. Plan.
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1.
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Vesting;
Limits on Exercise; Incentive Stock Option Status
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The Option shall vest and become
exercisable in percentage installments of the aggregate number of
shares subject to the Option as set forth on the cover page of this
Option Agreement. The Option may be exercised only to the extent
the Option is vested and exercisable.
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Cumulative
Exercisability . To the
extent that the Option is vested and exercisable, the Grantee has
the right to exercise the Option (to the extent not previously
exercised), and such right shall continue, until the expiration or
earlier termination of the Option.
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No Fractional
Shares . Fractional share
interests shall be disregarded, but may be cumulated.
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Minimum Exercise
. No fewer than
100 1
shares
of Common Stock may be purchased at any one time, unless the number
purchased is the total number at the time exercisable under the
Option.
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Nonqualified Stock
Option . The Option is a
nonqualified stock option and is not, and shall not be, an
incentive stock option within the meaning of Section 422 of
the Code.
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2.
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Continuance of Employment/Service
Required .
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The vesting schedule requires
continued employment or service through each applicable vesting
date as a condition to the vesting of the applicable installment of
the Option and the rights and benefits under this Option Agreement.
Employment or service for only a portion of the vesting period,
even if a substantial portion, will not entitle the Grantee to any
proportionate vesting or avoid or mitigate a termination of rights
and benefits upon or following a termination of employment or
services as provided in Section 4 below or under the
Plan.
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3.
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Method of
Exercise of Option .
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The Option shall be exercisable by
the delivery to the Chief Financial Officer of the Corporation (or
such other person as the Administrator may require pursuant to such
administrative exercise procedures as the Administrator may
implement from time to time) of
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a written notice stating the
number of shares of Common Stock to be purchased pursuant to the
Option or by the completion of such other administrative exercise
procedures as the Administrator may require from time to
time;
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payment in full for the Exercise
Price of the shares to be purchased in cash, check or by electronic
funds transfer to the Corporation;
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any written statements or
agreements required pursuant to Section 8.1 of the U.S. Plan;
and
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satisfaction of the Tax-Related
Items (as described in Section 6 below).
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The Administrator also may, but is not required
to, authorize a non-cash payment alternative by notice and third
party payment in such manner as may be authorized by the
Administrator.
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4.
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Early
Termination of Option .
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4.1 Possible Termination of
Option upon Change in Control. The Option is subject to
termination in connection with a Change in Control Event or certain
similar reorganization events as provided in Section 7.4 of
the U.S. Plan.
4.2 Termination of Option upon a
Termination of Grantee’s Employment or Services. Subject
to earlier termination on the Expiration Date of the Option or
pursuant to Section 4.1 above, if the Grantee ceases to be
employed by or ceases to provide services to the Corporation or a
Subsidiary, the following rules shall apply (the last day that the
Grantee is employed by or provides services to the Corporation or a
Subsidiary, as described in Section 7(13) below, is referred
to as the Grantee’s “ Severance Date
”):
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other than as expressly provided
below in this Section 4.2, (a) the Grantee will have
until the date that is 3 months after his or her Severance Date to
exercise the Option (or portion thereof) to the extent that it was
vested on the Severance Date, (b) the Option, to the extent
not vested on the Severance Date, shall terminate on the Severance
Date, and (c) the Option, to the extent exercisable for the
3-month period following the Severance Date and not exercised
during such period, shall terminate at the close of business on the
last day of the 3-month period;
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if the termination of the
Grantee’s employment or services is the result of the
Grantee’s death or Total Disability (as defined below),
(a) the Grantee (or his personal representative, as the case
may be) will have until the date that is 12 months after the
Grantee’s Severance Date to exercise the Option, (b) the
Option, to the extent not vested on the Severance Date, shall
terminate on the Severance Date, and (c) the Option, to the
extent exercisable for the 12-month period following the Severance
Date and not exercised during such period, shall terminate at the
close of business on the last day of the 12-month
period;
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if the Grantee’s employment
or services are terminated by the Corporation or a Subsidiary for
Cause (as defined below), the Option (whether vested or not) shall
terminate on the Severance Date.
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For purposes of the Option, “
Total Disability ” means a permanent and total
disability, as determined by the Administrator.
For purposes of the Option, “
Cause ” means that the Grantee:
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(1)
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has been
negligent in the discharge of his or her duties to the Corporation
or any of its Subsidiaries, has refused to perform stated or
assigned duties or is incompetent in or (other than by reason of a
disability or analogous condition) incapable of performing those
duties;
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(2)
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has been
dishonest or committed or engaged in an act of theft, embezzlement
or fraud, a breach of confidentiality, an unauthorized disclosure
or use of inside information, customer lists, trade secrets or
other confidential information; has breached a fiduciary duty, or
willfully and materially violated any other duty, law, rule,
regulation or policy of the Corporation, any of its Subsidiaries or
any affiliate of the Corporation or any of its Subsidiaries; or has
been convicted of a felony or misdemeanor (other than minor traffic
violations or similar offenses);
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(3)
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has materially
breached any of the provisions of any agreement with the
Corporation, any of its Subsidiaries or any affiliate of the
Corporation or any of its Subsidiaries; or
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(4)
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has engaged in
unfair competition with, or otherwise acted intentionally in a
manner injurious to the reputation, business or assets of, the
Corporation, any of its Subsidiaries or any affiliate of the
Corporation or any of its Subsidiaries; has improperly induced a
vendor or customer to break or terminate any contract with the
Corporation, any of its Subsidiaries or any affiliate of the
Corporation or any of its Subsidiaries; or has induced a principal
for whom the Corporation, any of its Subsidiaries or any affiliate
of the Corporation or any of its Subsidiaries acts as agent to
terminate such agency relationship.
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In all events the Option is subject
to earlier termination on the Expiration Date of the Option or as
contemplated by Section 4.1. The Administrator shall be the
sole judge of whether the Grantee continues to render employment or
services for purposes of this Option Agreement.
The Option and any other rights of
the Grantee under this Option Agreement or the Plan are
nontransferable and exercisable only by the Grantee, except as set
forth in Sections 5.7.2 and 5.7.3(a), (d) and (e) of the
U.S. Plan.
Regardless of any action the
Corporation and/or the Grantee’s employer (the
“Employer”) take with respect to any or all income tax
(including U.S. federal, state and local tax and/or non-U.S. tax),
social insurance, payroll tax, payment on account or other
tax-related withholding (“Tax-Related Items”), the
Grantee acknowledges that the ultimate liability for all
Tax-Related Items legally due by the Grantee is and remains the
Grantee’s responsibility and that the Corporation and/or the
Employer (1) make no representations or undertakings regarding
the treatment of any Tax-Related Items in connection with any
aspect of the Option, including the grant of the Option, the
vesting of the Option, the exercise of the Option, the subsequent
sale of any shares of Common Stock acquired at exercise and the
receipt of any dividends; and (2) do not commit to structure
the t
