EXHIBIT 10.6(d)
AMENDMENT NO. 3
TO
EXECUTIVE EMPLOYMENT AGREEMENT
This Amendment No. 3 to the Executive Employment Agreement dated as of
January 5, 2001, as amended by Amendment No. 1 dated April 30, 2002 and
Amendment No. 2 dated May 2, 2003 (as amended, the "Agreement") between BMC
Software, Inc. (the "Employer") and Xxxxxx X. Xxxxxxxxx (the "Executive") is
entered into as of this 31st day of January, 2004 (the "Amendment Date")
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. The definition of "Employment Period" in Section 1 of the Agreement shall
be deleted and the following shall be substituted therefore:
"`Employment Period' as defined in Section 3.2."
2. Section 3.2 of the Agreement shall be deleted and the following shall be
substituted therefor:
"3.2 Employment Period. Subject to the provisions of Section 8, the
term of the Executive's employment under this Agreement will commence upon
the Amendment Date and shall continue in effect through the third
anniversary of the Amendment Date (the "Employment Period"); provided,
however, that, subject to the provisions of Section 8, commencing on
December 17, 2003 and on each day thereafter, the Employment Period shall
be automatically extended for one additional day unless the Employer shall
give written notice to Executive that the Employment Period shall cease to
be so extended, in which event the Employment Period shall terminate on
the third anniversary of the date such notice is given. The Employment
Period may be further extended by mutual agreement of the parties."
3. Section 8(f) shall be amended to add the following paragraph to the end of
said Section 8(f):
"Notwithstanding anything to the contrary in this Agreement, if the
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 benefits provided for in this Section 8(f), together with any
other payments and benefits which the 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), then the
severance benefits provided hereunder (beginning with any benefit to be
paid in cash hereunder) shall be
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either (1) reduced (but not below zero) so that the present value of such
total amounts and benefits received by the Executive will be one dollar
($1.00) less than three times the Executive's "base amount" (as defined in
Section 280G of the Code) and so that no portion of such amounts and
benefits received by the Executive shall be subject to the excise tax
imposed by Section 4999 of the Code or (2) paid in full, whichever
produces the better net after-tax position to the Executive (taking into
account any applicable excise tax under Section 4999 of the Code and any
other applicable taxes). 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 reduced severance
benefit is paid hereunder in accordance with clause (1) of the first
sentence of this paragraph 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 the Executive's base amount, then
the Executive shall immediately repay such excess to the Employer upon
notification that an overpayment has been made.
4. The following new Section 12(p) shall be added to the end of Article 12 of
the Agreement:
"(p) Amendment of Certain Outstanding Stock Options. Each
Out-of-the-Money Option (as hereinafter defined) is hereby amended to
provide that, at any time and from time to time prior to the termination
of such option, the Executive may surrender all or a portion of such
option to the Employer for no consideration by providing written notice to
the Employer 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 the Out-of-the-Money Option is being
surrendered and, if such option is being surrendered with respect to less
than all of the shares then subject to such option, then such notice shall
also specify the date upon which such option became (or would become)
exercisable in accordance with the terms thereof with respect to the
shares being surrendered. The term "Out-of-the-Money Option" means each
stock option granted to the Executive by the Employer prior to the
effective date of Amendment No. 3 to this Agreement (the "Amendment Date")
with respect to which the purchase price per share of common stock of the
Employer under such option (as adjusted through the Amendment Date) is
greater than the fair market value of a share of common stock of the
Employer (determined under the plan pursuant to which such option was
granted) as of the Amendment Date. The provisions of this Section 12(p)
shall survive the termination of this Agreement."
5. This Amendment No. 3 (a) shall supersede any prior agreement between the
Employer and the Executive relating to the subject matter of this Amendment No.
3 and (b) shall be binding upon and inure to the benefit of the parties hereto
and any successors to the Employer and all persons lawfully claiming under the
Executive.
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6. Except as expressly modified by this Amendment No. 3, the terms of the
Agreement shall remain in full force and effect and are hereby confirmed and
ratified.
IN WITNESS WHEREOF, the Employer and the Executive have executed this
Amendment No. 3 as of the day and year first above written.
EMPLOYER
BMC SOFTWARE, INC.
By: /s/ XXXXXX XXXXX
EXECUTIVE
/s/ XXXXXX X. XXXXXXXXX
Xxxxxx X. Xxxxxxxxx
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