EXHIBIT 10.6(c)
AMENDMENT NO. 2
TO
EXECUTIVE EMPLOYMENT AGREEMENT
This Amendment No. 2 to the Executive Employment Agreement dated as of
January 5, 2001 (the "Agreement") between BMC Software, Inc. (the "Employer")
and the undersigned executive (the "Executive") is entered into as of this
______ day of May, 2003.
For and in consideration of One Dollar ($1.00) and other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Employer and the Executive hereby agree that the Agreement shall be amended as
follows:
1. Section 8(e)(ii) shall be amended to hereafter read as follows:
"(b) a payment equal to two times his then current cash bonus
target amount."
2. Section 8(f)(ii) shall be amended to hereafter read as follows:
"(b) a payment equal to two times his then current cash bonus
target amount."
3. Section 8(f) shall also be amended to add the following paragraph to
the end of said Section 8(f).
"Notwithstanding anything to the contrary in this Agreement, if
Executive is a "disqualified individual" (as defined in Section
280G(c) of the Internal Revenue Code of 1986, as amended (the
"Code")), and the severance benefit provided for in this Section
6.5, together with any other payments and benefits which
Executive has the right to receive from the Employer and its
affiliates, would constitute a "parachute payment" (as defined in
Section 280G(b)(2) of the Code), the severance benefit provided
hereunder shall be reduced (but not below zero) so that the
present value of such total amounts and benefits received by
Executive will be one dollar ($1.00) less than three times
Executive's "base amount" (as defined in Section 280G of the
Code) and so that no portion of such amounts and benefits
received by Executive shall be subject to the excise tax imposed
by Section 4999 of the Code. The determination as to whether any
such reduction in the amount of the severance benefit is
necessary shall be made initially by the Employer in good faith.
If a severance benefit is paid hereunder (whether or not reduced
as provided in the preceding provisions of this Section) and
through error or otherwise that payment, when aggregated with
other payments and benefits from the Employer (or its affiliates)
used in determining if a "parachute payment" exists, exceeds one
dollar ($1.00) less than three times Executive's base amount,
then
1
Executive shall immediately repay such excess to the Employer
upon notification that an overpayment has been made."
IN WITNESS WHEREOF, the Employer and the Executive have executed this
Amendment No. 2 as of the day and year first above written.
EMPLOYER
BMC SOFTWARE, INC.
By:
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EXECUTIVE
Xxxxxx Xxxxxxxxx
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