NONSTATUTORY STOCK OPTION AGREEMENT
Exhibit 10.23
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 1/48th 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
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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 4, the purchase
price of shares as to which this Option is exercised shall be paid in full at the time of exercise
in cash (including check, bank draft or money order payable to the order of the Company). 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, Executive 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 Executive, Executive (or the person permitted to exercise this Option in
the event of Executive’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.
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4. Cashless Exercise. Executive (or the person permitted to exercise this Option in
the event of Executive’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 Executive (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 Executive for federal, state or foreign income tax purposes, Executive 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
Executive fails to do so, the Company is authorized to withhold from any cash or Stock remuneration
then or thereafter payable to Executive 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 Executive 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 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, Executive (or the person permitted to exercise this Option in the event of Executive’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.
Executive agrees that the shares of Stock which Executive 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. Executive 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.
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7. Obligations under the Employment Agreement. In connection with Executive’s
employment by the Company, the Company or an Affiliate thereof shall provide Executive with access
to the confidential information of the Company and its Affiliates, or shall provide Executive the
opportunity to develop business good will inuring to the benefit of the Company and its Affiliates,
or shall entrust business opportunities to Executive. Executive has agreed, and hereby agrees, as
specified in more detail in the Employment Agreement and/or Executive’s Invention and
Non-Disclosure Agreement with the Company, to maintain the confidentiality of the Company’s and its
Affiliates’ information and to exercise the highest measures of fidelity and loyalty in the
protection and preservation of the Company’s and its Affiliates’ goodwill and business
opportunities. As part of the consideration for the Option granted to Executive hereunder; to
protect the Company’s and its Affiliates’ confidential information, the business good will of the
Company and its Affiliates that has been and will in the future be developed in Executive, or the
business opportunities that have been and will in the future be disclosed or entrusted to Executive
by the Company and its Affiliates; and as an additional incentive for the Company and Executive to
enter into this Agreement, the Company and Executive agree that if, during the term of Executive’s
employment with the Company or within a 24-month period following the date upon which Executive
terminates employment with the Company, Executive fails for any reason to comply with any of the
restrictive covenants set forth in Sections 7 and 8 of the Employment Agreement (as in effect on
the original effective date of the Employment Agreement), then (a)
this Option shall immediately terminate and cease to be exercisable and (b) the Company shall
be entitled to recover from Executive, and Executive 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 Executive
received from the exercise of this Option during the period beginning on the date that is one year
before the date of Executive’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 730 minus the number of consecutive days following
Executive’s Termination of Employment during which Executive remained in compliance with the
restrictive covenants set forth in Sections 7 and 8 of the Employment Agreement, and Y equals 730.
If any of the restrictions set forth in this Paragraph 7 are found by a court to be
unreasonable, or overly broad in any manner, or otherwise unenforceable, the parties hereto 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, Executive shall be
considered to be in the employment of the Company as long as Executive remains an employee of
either the Company, an Affiliate 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 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 Executive and the Company.
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9. Surrender of Option. At any time and from time to time prior to the termination of
this Option, Executive may surrender all or a portion of this Option to the Company for no
consideration by providing written notice to the Company at its principal executive office
addressed to the attention of the President or the Treasurer. Such notice shall specify the number
of shares with respect to which this Option is being surrendered and, if this Option is being
surrendered with respect to less than all of the shares then subject to this Option, then such
notice shall also specify the date upon which this Option became (or would become) exercisable in
accordance with Paragraph 3 with respect to the shares being surrendered.
10. Binding Effect; Controlling Document. This Agreement shall be binding upon and
inure to the benefit of any successors to the Company and all persons lawfully claiming under
Executive. In the event of a conflict between the text of this Agreement and the Employment
Agreement, the text of this Agreement shall control.
11. Plan Provisions Control. This Agreement is subject to the terms of the
Plan. To the extent that any of the terms of this Agreement are inconsistent with the provisions
of the Plan, the provisions of the Plan control. Any capitalized terms contained herein which are
not otherwise defined in this Agreement have the meaning ascribed to such terms in the Plan.
12. 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.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed by its officer
thereunto duly authorized, and Executive has executed this Agreement by electronic acceptance via
the on-line brokerage system, all as of the day and year first above written.
| BMC Software, Inc.: | ||
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Senior Senior Vice President, Administration |
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