EXHIBIT 10.4(d)
FORM OF NONSTATUTORY STOCK OPTION AGREEMENT
This Nonstatutory Stock Option Agreement is made as of the ____ day of
_______, 200_ between BMC Software, Inc., a Delaware corporation (the
"Company"), and __________________ ("employee").
To carry out the purposes of the BMC Software, Inc. 2000 Employee Stock
Incentive Plan (the "Plan"), by affording Employee 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 and in
the Plan, the Company and Employee hereby agree as follows:
1. GRANT OF OPTION. The Company hereby irrevocably grants to Employee
the right and option ("Option") to purchase all or any part of an aggregate of
_______ 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 __________ 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. Acceptable
electronic notification through our third party option administrator is deemed
written notice. However, this Option shall not be exercisable for more than a
percentage of the aggregate number of shares offered by this Option determined
by the number of full years from the date of grant hereof to the date of such
exercise, in accordance with the following schedule:
PERCENTAGE OF SHARES
NUMBER OF FULL YEARS THAT MAY BE PURCHASED
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Less than 1 year 0%
1 year 25%
2 years 50%
3 years 75%
4 years or more 100%
Notwithstanding the foregoing, in the event Employee takes an unpaid leave of
absence from the Company (a) Employee's right to exercise this Option shall be
suspended three months after the beginning
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of such leave, (b) Employee's right to exercise this Option shall be reinstated
if Employee returns to active employment with the Company within 12 months after
the beginning of such leave, and (c) if Employee does not return to active
employment with the Company within 12 months after the beginning of such leave,
then, for purposes of this Option, Employee shall be considered to have
terminated employment on the date such leave began. Further, notwithstanding the
exercise schedule set forth above, (i) while Employee 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
Employee was entitled to purchase hereunder as of the date such leave began, and
(ii) if Employee 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 Employee
remains an employee of the Company and will terminate and cease to be
exercisable upon Employee's termination of employment with the Company, except
that:
(a) If Employee's employment with the Company terminates by
reason of long-term disability (within the meaning assigned to such
term by Employee's employer for Employee's job description and primary
location of employment), then this Option may be exercised by Employee
(or Employee'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 Employee) at any time during the period of one year following
such termination, but only as to the number of shares Employee was
entitled to purchase hereunder as of the date Employee's employment so
terminates.
(b) If Employee dies while in the employ of the Company, then
Employee'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 Employee, may exercise this Option at any time during the
period of one year following the date of Employee's death, as follows:
(i) if Employee had attained age 65 at the time of Employee's death,
then this Option may be exercised in full; and (ii) if Employee had not
attained age 65 at the time of Employee's death, then this Option may
be exercised only as to the number of shares Employee was entitled to
purchase hereunder as of the date of Employee's death.
(c) If Employee's employment with the Company terminates for
any reason other than as described in (a) or (b) above, then, unless
such employment is terminated for cause, employee resigns without the
written consent of the Company, or as otherwise provided in Paragraph 7
below, this Option may be exercised by Employee at any time during the
period of three months following such termination, or by Employee'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
Employee) during a period of one year following Employee's death if
Employee dies during such three-month period, but in each case only as
to the number of shares Employee was entitled to
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purchase hereunder upon exercise of this Option as of the date
Employee's employment so terminates. As used in this paragraph, the
term "cause" shall mean Employee (i) has been convicted of a
misdemeanor involving moral turpitude or of a felony, (ii) has engaged
in gross negligence or willful misconduct in the performance of the
duties of Employee's employment, (iii) has willfully disregarded any
written corporate policies established by the Company, or (iv) has
materially breached any material provision of any written agreement
between Employee and the Company or any of its affiliates.
This Option shall not be exercisable in any event after the expiration of ten
years from the date of grant hereof, and this Option shall not become
exercisable with respect to any additional shares after termination of
Employee's 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 (A) in cash (including check, bank draft or money order payable to the
order of the Company), (B) by delivering to the Company shares of Stock having a
fair market value equal to the purchase price, or (C) any combination of cash or
Stock. 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, Employee shall provide a cash payment for such amount as
is necessary to 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 Employee, Employee (or the person
permitted to exercise this Option in the event of Employee'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. Employee (or the person permitted to exercise
this Option in the event of Employee'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 Employee (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 Employee for federal, state or foreign income
tax purposes, Employee 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
Employee fails to do so, the Company is authorized to withhold from any cash or
Stock remuneration then or thereafter payable to Employee 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
Employee 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 shall be satisfactory to the Company, addressed to the
Company and satisfactory in
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form and substance to the Company's counsel, to the effect that the proposed
issuance of such shares to such Option holder may be made without registration
under the Act. In the event exemption from registration under the Act is
available upon an exercise of this Option, Employee (or the person permitted to
exercise this Option in the event of Employee's death), if requested by the
Company to do so, will execute and deliver to the Company in writing an
agreement containing such provisions as the Company may require to assure
compliance with applicable securities laws.
Employee agrees that the shares of Stock which Employee may acquire by
exercising this Option will not be sold or otherwise disposed of in any manner
which would constitute a violation of any applicable federal, state, or foreign
securities laws. Employee also agrees that (a) the certificates representing the
shares of Stock purchased under this Option may bear such legend or legends as
the Company deems appropriate in order to assure compliance with applicable
securities laws, (b) the Company may refuse to register the transfer of the
shares of Stock purchased under this Option on the stock transfer records of the
Company if such proposed transfer would in the opinion of counsel satisfactory
to the Company constitute a violation of any applicable securities law, and (c)
the Company may give related instructions to its transfer agent, if any, to stop
registration of the transfer of the shares of Stock purchased under this Option.
7. OBLIGATIONS UPON TERMINATION OF EMPLOYMENT. In connection with
Employee's employment by the Company, the Company or an affiliate thereof shall
provide Employee with access to the confidential information of the Company and
its affiliates, or shall provide Employee the opportunity to develop business
good will inuring to the benefit of the Company and its affiliates, or shall
entrust business opportunities to Employee. Employee has agreed, and hereby
agrees, as specified in more detail in Employee's Invention and Non-Disclosure
Agreement with the Company, to maintain the confidentiality of the Company's and
it's affiliates' information and to exercise the highest measures of fidelity
and loyalty in the protection and preservation of the Company's and it's
affiliates' goodwill and business opportunities. As part of the consideration
for the Option granted to Employee hereunder; to protect the Company's and it's
affiliates' confidential information, the business good will of the Company and
its affiliates that has been and will in the future be developed in Employee, or
the business opportunities that have been and will in the future be disclosed or
entrusted to Employee by the Company and its affiliates; and as an additional
incentive for the Company and Employee to enter into this Agreement, the Company
and Employee agree that if Employee during the 12 months following the
termination of Employee's employment with the Company in any geographic area or
market where the Company or any of its affiliates are conducting business as of
the date of termination of the employment relationship or have during the
previous 12 months conducted such business:
(a) engages in any business competitive with the business
conducted by the Company or any of its affiliates; or
(b) renders advice or services to, or otherwise assists, any
other person, association, or entity who is engaged, directly or
indirectly, in any business competitive with the business conducted by
the Company or any of its affiliates with respect to such competitive
business; or
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(c) directly or indirectly solicits or accepts business
competitive with the business conducted by the Company or any of its
affiliates from any customers or prospects of the Company or any of its
affiliates; or
(d) induces any employee of the Company or any of its
affiliates to terminate his or her employment with the Company or any
such affiliate or hires or assists in the hiring of any such employee
by any person,
then (i) this Option shall immediately terminate and cease to be exercisable and
(ii) the Company shall be entitled to recover from Employee, and Employee shall
pay to the Company, an amount of money equal to A multiplied by B, where A
equals the amount of the gain, if any, that Employee received from the exercise
of this Option during the period beginning on the date that is one year before
the date of Employee's termination of employment with the Company and ending on
the date this Option terminates and ceases to be exercisable as provided herein,
and B equals the fraction X divided by Y, where X equals 365 minus the number of
consecutive days following Employee's termination of employment with the Company
during which Employee remained in compliance with the restrictive covenants set
forth in this Paragraph 7, and Y equals 365.
If any of the restrictions set forth in this Paragraph 7 are found by a
court to be unreasonable, or overly broad as to geographic area or time, or
otherwise unenforceable, the parties intend for such restrictions to be modified
by the court so as to be reasonable and enforceable and, as so modified, to be
fully enforced.
8. EMPLOYMENT RELATIONSHIP. For purposes of this Agreement, Employee
shall be considered to be in the employment of the Company as long as Employee
remains an employee of either the Company, an affiliate of the Company, a parent
or subsidiary corporation (as defined in section 424 of the Code) of the
Company, or a corporation or a parent or subsidiary of such corporation assuming
or substituting a new option for this Option. Any question as to whether and
when there has been a termination of such employment, and the cause of such
termination, shall be determined by the committee charged with the general
administration of the Plan, and its determination shall be final. Unless
otherwise provided in a written employment agreement, nothing herein shall
modify the at-will nature of the employment relationship between Employee and
the Company.
9. BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of any successors to the Company and all persons lawfully claiming
under Employee.
10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
TEXAS, UNITED STATES OF AMERICA,
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE WITHOUT GIVING
EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAWS.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by its officer thereunto duly authorized, and Employee has executed
this Agreement, all as of the day and year first above written.
BMC SOFTWARE, INC.
BY:
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XXXXXXX XXXX
VICE PRESIDENT, HUMAN RESOURCES
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EMPLOYEE
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