EXHIBIT 10.8(b)
NONEMPLOYEE DIRECTOR STOCK OPTION AGREEMENT
AGREEMENT made as of the _______ day of ___________, 20____, between
BMC SOFTWARE, INC., a Delaware corporation (the "Company"), and
_______________________________ ("Director").
To carry out the purposes of the BMC SOFTWARE, INC. 2002 NONEMPLOYEE
DIRECTOR STOCK OPTION PLAN (the "Plan"), by affording Director the opportunity
to purchase shares of the common stock of the Company, par value $.01 per share
("Stock"), and in consideration of the mutual agreements and other matters set
forth herein and in the Plan, the Company and Director hereby agree as follows:
1. GRANT OF OPTION. The Company hereby irrevocably grants to Director
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. In the event of any conflict between the terms of this Agreement and
the Plan, the Plan shall control. Capitalized terms used but not defined in this
Agreement shall have the meaning attributed to such terms under the Plan, unless
the context requires otherwise. This Option shall not be treated as an incentive
stock option within the meaning of section 422(b) of the Code.
2. PURCHASE PRICE. The purchase price of Stock purchased pursuant to
the exercise of this Option shall be $______ per share, which has been
determined to be not less than the Fair Market Value of the Stock at the date of
grant of this Option. 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 to the
Company at its principal executive office addressed to the attention of its
Corporate Secretary (or such other officer or employee of the Company as the
Company may designate from time to time), at any time and from time to time
after the date of grant hereof, but, except as otherwise provided below, 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 months
from the date of grant hereof to the date of such exercise, in accordance with
the following schedule:
PERCENTAGE OF SHARES
NUMBER OF FULL MONTHS THAT MAY BE PURCHASED
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Less than ___ months 0%
___ months ___%
___ months ___%
___ months ___%
___ months or more 100%
Notwithstanding the foregoing, if a Change in Control shall occur prior
to the date upon which this Option is exercisable in full as provided in the
preceding schedule and if Director has been a member of the Board continuously
from the date of grant of this Option to the date of such
Change in Control, then this Option shall become exercisable in full on the date
of such Change in Control. For purposes of the preceding sentence, the term
"Change in Control" shall mean any of the following circumstances: (a) the
acquisition, directly or indirectly, by any person or related group of persons
(other than the Company or a person that directly or indirectly controls, is
controlled by, or is under common control with, the Company) of beneficial
ownership (within the meaning of Rule 13d-3 of the ▇▇▇▇ ▇▇▇) of securities
possessing more than fifty percent (50%) of the total combined voting power of
the Company's outstanding securities pursuant to a tender or exchange offer made
directly to the Company's stockholders; (b) a change in the composition of the
Board over a period of thirty-six (36) consecutive months or less such that a
majority of the Board members ceases, by reason of one or more contested
elections for Board membership, to be comprised of individuals who either (A)
have been Board members continuously since the beginning of such period or (B)
have been elected or nominated for election as Board members during such period
by at least a majority of the Board members described in clause (A) who were
still in office at the time such election or nomination was approved by the
Board; or (c) a merger or consolidation in which securities possessing at least
forty percent (40%) of the total combined voting power of the Company's
outstanding securities are transferred to a person or persons different from the
persons holding those securities immediately prior to such transaction, or the
sale, transfer or other disposition of all or substantially all of the Company's
assets in complete liquidation or dissolution of the Company.
If Director's membership on the Board terminates for any reason other
than as described in the next succeeding paragraph, then this Option may be
exercised by Director at any time, subject to the expiration of this Option as
herein provided, following such termination, but in such case this Option may be
exercised only as to the number of shares Director was entitled to purchase
hereunder as of the date Director's membership on the Board so terminates.
If Director dies while a member of the Board, then Director'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 Director, may exercise this
Option in full at any time during the period of one year following the date of
Director's death.
If Director dies after Director's membership on the Board has
terminated, then Director'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 Director, may exercise this Option at any time during the period of one year
following the date of Director's death, but in such case this Option may be
exercised only as to the number of shares Director was entitled to purchase
hereunder as of the date Director's membership on the Board so terminates.
This Option shall not be exercisable in any event after the expiration
of ten years from the date of grant hereof. 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 or constructively tendering to the Company shares of
Stock having a Fair Market Value equal to the purchase price (provided such
shares used for this purpose must have been held by Director for such minimum
period of time as may be established from time to time by the Committee), (c) if
the Stock is readily tradable on a national securities market, through a
"cashless exercise" in accordance with a Company established policy or program
for the same, or (d) any combination of the foregoing. 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 exercise price thereof; rather, Director shall
provide a cash payment for such amount as is necessary to effect the issuance
and acceptance of only whole
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shares of Stock. Unless and until a certificate or certificates representing
such shares shall have been issued by the Company to Director, Director (or the
person permitted to exercise this Option in the event of Director's death) shall
not be or have any of the rights or privileges of a shareholder of the Company
with respect to shares acquirable upon an exercise of this Option.
4. 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 or wages to Director for federal, state or local
tax purposes, Director 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 minimum obligation under applicable tax laws or regulations.
No exercise of this Option shall be effective until Director (or the person
entitled to exercise this Option, as applicable) has made arrangements approved
by the Company to satisfy all applicable minimum tax withholding requirements of
the Company.
5. STATUS OF STOCK. The Company intends to register for issuance under
the Securities Act of 1933, as amended (the "Act") the shares of Stock
acquirable upon exercise of this Option, and to keep such registration effective
throughout the period this Option is exercisable. In the absence of such
effective registration or an available exemption from registration under the
Act, issuance of shares of Stock acquirable upon exercise of this Option will be
delayed until registration of such shares is effective or an exemption from
registration under the Act is available. The Company intends to use its
reasonable efforts to ensure that no such delay will occur. In the event
exemption from registration under the Act is available upon an exercise of this
Option, Director (or the person permitted to exercise this Option in the event
of Director's death or incapacity), 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.
Director agrees that that the shares of Stock which Director 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 or state
securities laws. Director also agrees that (i) the certificates representing the
shares of Stock purchased under this Option may bear such legend or legends as
the Committee deems appropriate in order to assure compliance with applicable
securities laws, (ii) 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
(iii) 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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6. 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 Director.
7. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of
the parties with regard to the subject matter hereof, and contains all the
covenants, promises, representations, warranties and agreements between the
parties with respect to the Option granted hereby. Without limiting the scope of
the preceding sentence, all prior understandings and agreements, if any, among
the parties hereto relating to the subject matter hereof are hereby null and
void and of no further force and effect. Any modification of this Agreement
shall be effective only if it is in writing and signed by both Director and an
authorized officer of the Company.
8. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO CONFLICTS OF
LAWS PRINCIPLES THEREOF.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by its officer thereunto duly authorized, and Director has executed
this Agreement, all as of the day and year first above written.
BMC SOFTWARE, INC.
By:
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DIRECTOR
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