Nonstatutory Stock Option Agreement Granted Under Amended and Restated 2004 Stock Incentive Plan
Exhibit 99.5
Nonstatutory Stock Option Agreement
Granted Under Amended and Restated 2004 Stock Incentive Plan
Granted Under Amended and Restated 2004 Stock Incentive Plan
1. Grant of Option.
This agreement evidences the grant by Blackboard Inc., a Delaware corporation (the “Company”),
on [Date] (the “Grant Date”) to [Name], an employee, consultant or director of the Company (the
“Participant”), of an option to purchase, in whole or in part, on the terms provided herein and in
the Company’s Amended and Restated 2004 Stock Incentive Plan (the “Plan”), a total of [Number]
shares (the “Shares”) of common stock, $0.01 par value per share, of the Company (“Common Stock”)
at $[Price] per Share. Unless earlier terminated, this option shall expire at 4:00 p.m., Eastern
time, on the eighth anniversary of the Grant Date (the “Final Exercise Date”).
It is intended that the option evidenced by this agreement shall not be an incentive stock
option as defined in Section 422 of the Internal Revenue Code of 1986, as amended, and any
regulations promulgated thereunder (the “Code”). Except as otherwise indicated by the context, the
term “Participant”, as used in this option, shall be deemed to include any person who acquires the
right to exercise this option validly under its terms.
2. Vesting Schedule.
This option will become exercisable (“vest”) as to 25% of the original number of Shares on the
first anniversary of the Vesting Commencement Date and, as to the remaining 75% of the original
number of Shares, ratably on a monthly basis at the end of each of the 36 months following the
first anniversary of the Vesting Commencement Date. The “Vesting Commencement Date” is [Vesting
Commencement Date].
The right of exercise shall be cumulative so that to the extent the option is not exercised in
any period to the maximum extent permissible it shall continue to be exercisable, in whole or in
part, with respect to all Shares for which it is vested until the earlier of the Final Exercise
Date or the termination of this option under Section 3 hereof or the Plan. Without prior notice to
the Participant, the Company’s Board of Directors may accelerate the vesting hereunder upon a
resolution of the Board of Directors duly passed and approved.
Upon the occurrence of a Reorganization Event or a Change in Control Event (as defined in the
Plan), except to the extent specifically provided to the contrary in any other agreement between
the Participant and the Company, the vesting hereunder shall be accelerated so that this option
shall become immediately exercisable for the number of Shares subject to this option which
otherwise would have first vested within 12 months following such Reorganization Event or Change in
Control Event, and any remaining unvested shares subject to such Option shall continue to vest in
accordance with the vesting schedule set forth herein as though such 12 month period had actually
passed. If within 12 months of a Reorganization Event or a Change in Control Event, the
Participant ceases to be an Eligible Participant due to termination by the Company of its
relationship with the Participant without Cause (as defined below) or a Constructive Termination
(as defined below) of the Participant, except to the extent specifically
provided to the contrary in any other agreement between the Participant and the Company, the
vesting hereunder shall be further accelerated so that this option shall become immediately
exercisable for the number of Shares subject to this option which otherwise would have first vested
within 24 months following such termination or Constructive Termination (“Additional
Acceleration”), provided that the acceleration periods under this Section 2 shall be cumulative,
and any remaining unvested shares subject to such Option shall continue to vest in accordance with
the vesting schedule set forth herein as though such additional 24 month period had actually
passed.
For the purposes of this option, a “Constructive Termination” is deemed to have occurred if
the Participant is relocated outside of the Participant’s then residential area without his or her
consent or there is a material diminution of the Participant’s compensation, duties or
responsibilities without his or her consent.
In the event that the Participant is terminated without Cause (as defined below), the vesting
hereunder shall be accelerated so that this Option shall become immediately exercisable for the
number of Shares subject to this option which otherwise would have first vested within 12 months
following such termination; provided that this sentence shall not apply if Additional Acceleration
has occurred.
3. Exercise of Option.
(a) Form of Exercise. Each election to exercise this option shall be in writing,
signed by the Participant, and received by the Company at its principal office, or by other method
authorized pursuant to the Plan, accompanied by this agreement and payment in full in the manner
provided in the Plan. The Participant may purchase less than the number of shares covered hereby,
provided that no partial exercise of this option may be for any fractional share.
(b) Continuous Relationship with the Company Required. Except as otherwise provided
in this Section 3, this option may not be exercised unless the Participant, at the time he or she
exercises this option, is, and has been at all times since the Grant Date, an employee, officer or
director of, or consultant or advisor to, the Company or any other entity the employees, officers,
directors, consultants, or advisors of which are eligible to receive option grants under the Plan
(an “Eligible Participant”).
(c) Termination of Relationship with the Company. If the Participant ceases to be an
Eligible Participant for any reason, then, except as provided in paragraphs (d) and (e) below, the
right to exercise this option shall terminate twelve months after such cessation (but in no event
after the Final Exercise Date), provided that this option shall be exercisable only
to the extent that the Participant was entitled to exercise this option on the date of such
cessation. Notwithstanding the foregoing, if the Participant, prior to the Final Exercise Date,
violates the non-competition or confidentiality provisions of any employment contract,
confidentiality and nondisclosure agreement or other agreement between the Participant and the
Company, the right to exercise this option shall terminate immediately upon such violation.
(d) Exercise Period Upon Death or Disability. If the Participant dies or becomes
disabled (within the meaning of Section 22(e)(3) of the Code) prior to the Final Exercise Date
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while he or she is an Eligible Participant and the Company has not terminated such
relationship for “cause” as specified in paragraph (e) below, this option shall be exercisable,
within the period of one year following the date of death or disability of the Participant, by the
Participant (or in the case of death by an authorized transferee), provided that
this option shall be exercisable only to the extent that this option was exercisable by the
Participant on the date of his or her death or disability, and further provided that this option
shall not be exercisable after the Final Exercise Date.
(e) Discharge for Cause. If the Participant, prior to the Final Exercise Date, is
discharged by the Company for “cause” (as defined below), the right to exercise this option shall
terminate immediately upon the effective date of such discharge. “Cause” shall mean willful
misconduct by the Participant or willful failure by the Participant to perform his or her
responsibilities to the Company (including, without limitation, breach by the Participant of any
provision of any employment, consulting, advisory, nondisclosure, non-competition or other similar
agreement between the Participant and the Company), as determined by the Company, which
determination shall be conclusive. The Participant shall be considered to have been discharged for
“Cause” if the Company determines, within 30 days after the Participant’s resignation, that
discharge for cause was warranted.
4. Withholding.
No Shares will be issued pursuant to the exercise of this option unless and until the
Participant pays to the Company, or makes provision satisfactory to the Company for payment of, any
federal, state or local withholding taxes required by law to be withheld in respect of this option.
5. Nontransferability of Option.
This option may not be sold, assigned, transferred, pledged or otherwise encumbered by the
Participant, either voluntarily or by operation of law, except by will or the laws of descent and
distribution, and, during the lifetime of the Participant, this option shall be exercisable only by
the Participant.
6. Agreement in Connection with Public Offering.
The Participant agrees, in connection with an underwritten public offering of the Company’s
securities pursuant to a registration statement under the Securities Act, (i) not to sell, make
short sale of, loan, grant any options for the purchase of, or otherwise dispose of any shares of
Common Stock held by the Participant (other than those shares included in the offering) without the
prior written consent of the Company or the underwriters managing such initial underwritten public
offering of the Company’s securities for a period of 90 days from the effective date of such
registration statement, and (ii) to execute any agreement reflecting clause (i) above as may be
requested by the Company or the managing underwriters at the time of such offering.
7. Provisions of the Plan.
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This option is subject to the provisions of the Plan, a copy of which is furnished to the
Participant with this option.
IN WITNESS WHEREOF, the Company has caused this option to be executed under its corporate seal
by its duly authorized officer. This option shall take effect as a sealed instrument.
| Blackboard Inc. | ||||||
Dated: [Grant Date]
|
By: | |||||
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