Exhibit 10.23
NONSTATUTORY STOCK OPTION AGREEMENT
This
Nonstatutory Stock Option Agreement is made between BMC Software,
Inc., a Delaware corporation (the “Company”), and the
recipient (“Executive”).
To carry out
the purposes of the BMC Software, Inc. 2007 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 the number of shares of Stock displayed
for this grant in your on-line brokerage account, 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
displayed in your on-line brokerage account. 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
-1-
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 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&nb
