PERFORMANCE-BASED RESTRICTED STOCK AWARD AGREEMENT
Exhibit 10.24
Form Agreement
BMC Software, Inc., a Delaware corporation (the “Company”), hereby grants to the Recipient this
Performance-Based Restricted Stock Award (this “Award”) effective as of the Grant Date pursuant to
the terms of this Performance-Based Restricted Stock Award Agreement (this “Agreement”). The Award
and this Agreement are subject to all of the terms and conditions of this Performance-Based
Restricted Stock Award and the BMC Software, Inc. 2007 Incentive Plan (the “Plan”), a copy of which
is attached hereto. Unless otherwise specified, capitalized terms used in this Agreement shall
have the meanings specified in the Plan. The terms and conditions of the Plan are incorporated
herein by this reference and govern except to the extent that this Agreement provides otherwise.
RECIPIENT NAME:
GRANT DATE:
GRANT DATE:
RESTRICTED SHARES:
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SHARES OF THE COMPANY’S COMMON STOCK SUBJECT TO THE
PERFORMANCE-BASED VESTING REQUIREMENTS SET FORTH IN THIS AGREEMENT (“RESTRICTED
SHARES”). THE VESTING TERMS ARE SET FORTH IN THE TERMS AND CONDITIONS ATTACHED HERETO
AS ANNEX A AND THE VESTING SCHEDULE ATTACHED HERETO AS ANNEX B AND SUCH ANNEXES ARE
INCORPORATED HEREIN BY THIS REFERENCE.
By accepting this Performance-Based Restricted Stock Award and any shares of common stock of the
Company (“Common Stock”) issued pursuant to this Performance-Based Restricted Stock Award,
Recipient agrees to the terms and conditions set forth herein (the “Terms and Conditions”) and
acknowledges receipt of a copy of the Plan. Recipient represents that Recipient has read and
understands the terms of the Plan and this Performance-Based Restricted Stock Award, and accepts
this Performance-Based Restricted Stock Award subject to all such terms and conditions, including
any further amendments to the Plan. Recipient also acknowledges that he or she should consult a
tax advisor regarding the tax aspects of this Award. Recipient is further hereby advised that he
or she may not rely on the Company for any opinion or advice as to the personal tax implications of
this Award. IF RECIPIENT DOES NOT ACCEPT THIS AWARD, HE OR SHE MUST NOTIFY HUMAN RESOURCES,
ATTENTION XXXXXXX XXXXX, IN WRITING WITHIN 30 DAYS OF GRANT DATE.
IN WITNESS WHEREOF, this Agreement has been executed by the Company and Recipient to be effective
as of the Grant Date specified above.
EMPLOYEE:
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BMC Software, Inc.: | |
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| Xxxxxxx Xxxxxxx | ||
| Senior Vice President, Administration |
TERMS AND CONDITIONS
1. Award. Pursuant to the Plan the Restricted Shares shall be issued as hereinafter
provided in Recipient’s name subject to certain restrictions thereon.
2. Definitions. For purposes of this Agreement, the terms “Cause,” “Change of
Control” and “Good Reason” shall have the meanings assigned to such terms in the Employment
Agreement (as defined below) or Change of Control Agreement (as defined below), as applicable to
Recipient, and the following terms shall have the meanings indicated below:
| (a) | “Change of Control Termination” shall mean a termination of
Recipient’s employment with the Company within the 12-month period beginning on
the date upon which a Change of Control occurs, which termination of employment
is by the Company without Cause or by Recipient within 60 days of an event that
constitutes Good Reason. |
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| (b) | “Change of Control Agreement” shall mean the Change of Control
Agreement, if any, between the Company and Recipient. |
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| (c) | “Employment Agreement” shall mean the Employment Agreement, if any,
between the Company and Recipient, as the same may be amended from time to time. |
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| (d) | “Forfeiture Restrictions” shall mean the restrictions to which the
Restricted Shares are subject as described in Section 3(a) hereof. |
3. Restricted Shares. The following restrictions apply to the Restricted Shares:
(a) Forfeiture Restrictions. The Restricted Shares shall not be sold, assigned,
pledged, exchanged, hypothecated or otherwise transferred, encumbered or disposed of to the
extent then subject to the Forfeiture Restrictions, and except as provided in (b) below, in
the event Recipient’s employment with the Company shall terminate for any reason, Recipient
shall, for no consideration, forfeit to the Company all Restricted Shares to the extent then
subject to the Forfeiture Restrictions. The Forfeiture Restrictions shall be binding upon
and enforceable against any transferee of the Restricted Shares.
(b) Lapse of Forfeiture Restrictions. With respect to each Performance Period
(as defined in Annex B), the Forfeiture Restrictions shall lapse as to the Restricted Shares
in accordance with the performance-based vesting schedule set forth on Annex B (the “Vesting
Schedule”), provided that Recipient has been continuously employed by the Company (or one of
its affiliates) from the Grant Date through the date the Committee certifies the results for
such Performance Period (the “Certification Date”). The Committee shall determine the
Company’s actual performance and shall certify such results as soon as reasonably practicable
following the completion of each Performance Period. To the extent that the Vesting Schedule
provides for partial attainment against a performance target and such performance is
achieved, then the Forfeiture Restrictions shall lapse as to the corresponding percentage of
Restricted Shares set forth on the Vesting Schedule. To the extent that a performance target
is not achieved, the corresponding percentage of Restricted Shares as set forth on the
Vesting Schedule shall be forfeited to the Company. The Company shall not issue fractional
shares and shall round to the nearest whole share when calculating vesting and lapsing of the
Forfeiture Restrictions.
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Further, the Forfeiture Restrictions shall lapse as to all of the Restricted Shares then
subject to the Forfeiture Restrictions on the date Recipient incurs a Change of Control
Termination.
(c) Book Entry and Certificates. The Company shall instruct its transfer agent
to record an entry in the Company’s shareholder records for the Restricted Shares in the
Recipient’s name, pursuant to which Recipient shall have all of the rights of a shareholder
of the Company with respect to the Restricted Shares, including, without limitation, voting
rights and the right to receive dividends (provided, however, that dividends paid in shares
of the Company’s stock (“Stock Dividends”) shall be subject to the Forfeiture Restrictions).
Recipient may not sell, transfer, pledge, exchange, hypothecate
or otherwise dispose of the Restricted Shares unless and until the Forfeiture Restrictions
have lapsed and a breach of the terms of this Agreement shall cause a forfeiture of the
Restricted Shares. As soon as practicable following the lapse of the Forfeiture Restrictions
as to any portion of the Restricted Shares and any Stock Dividends thereon, the Company shall
cause the restrictions to be lifted as to such shares and deposit such shares via electronic
share transfer (DWAC) in an account in the name of Recipient at a broker of the Company’s
choosing and shall notify Recipient of such action.
(d) Corporate Acts. The existence of the Restricted Shares shall not affect in
any way the right or power of the Board or the shareholders of the Company to make or
authorize any adjustment, recapitalization, reorganization or other change in the Company’s
capital structure or its business, any merger or consolidation of the Company, any issue of
debt or equity securities, the dissolution or liquidation of the Company or any sale, lease,
exchange or other disposition of all or any part of its assets or business or any other
corporate act or proceeding. The prohibitions of Section 3(a) hereof shall not apply to the
transfer of Restricted Shares pursuant to a plan of reorganization of the Company, but any
stock, securities or other property received in exchange therefor shall also become subject
to the Forfeiture Restrictions and provisions governing the lapsing of such Forfeiture
Restrictions applicable to the original Restricted Shares for all purposes of this Agreement
and any certificates representing such stock, securities or other property shall be legended
to show such restrictions.
4. Tax Matters. RECIPIENT UNDERSTANDS THAT THE GRANT OF THIS AWARD, THE LAPSE OF THE
FORFEITURE RESTRICTIONS, THE ISSUANCE OF THE COMMON STOCK UPON A LAPSE OF THE FORFEITURE
RESTRICTIONS, AND THE SALE OF SUCH COMMON STOCK, MAY HAVE TAX IMPLICATIONS FOR RECIPIENT.
RECIPIENT SHOULD CONSULT HIS OR HER OWN TAX ADVISOR. RECIPIENT ACKNOWLEDGES THAT HE OR SHE IS NOT
RELYING ON THE COMPANY FOR ANY TAX, FINANCIAL OR LEGAL ADVICE. IT IS SPECIFICALLY UNDERSTOOD BY
THE RECIPIENT THAT NO REPRESENTATIONS ARE MADE AS TO ANY PARTICULAR TAX TREATMENT WITH RESPECT TO
THIS AWARD. To the extent that the receipt of the Restricted Shares or the lapse of any Forfeiture
Restrictions results in compensation income to Recipient for federal, state or foreign income tax
purposes, the Company may withhold the number of whole Restricted Shares having a market value
(based on the closing price of the Company’s common stock on the Grant Date or the Certification
Date, as applicable) equal to any tax required to be withheld by reason of such compensation
income. The Company is also authorized to withhold from Recipient’s payroll check any additional
funds to make up the difference between the required tax withholding amount and the value of the
whole Restricted Shares calculated in the preceding sentence, or require payment of such amount
from Recipient, such that the Company does not have to withhold a fractional Restricted Share for
tax withholding purposes.
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5. Status of Stock. The Restricted Shares issued under this Agreement will not be
sold or otherwise disposed of in any manner that would constitute a violation of any applicable
federal or state securities laws. The certificates, if any, representing the Restricted Shares may
bear such legend or legends as the Committee deems appropriate in order to reflect the Forfeiture
Restrictions and to assure compliance with applicable securities laws. The Company may refuse to
register the transfer of the Restricted Shares on the stock transfer records of the Company if such
proposed transfer would constitute a violation of the Forfeiture Restrictions, this Agreement or,
in the opinion of counsel satisfactory to the Company, of any applicable securities law. The
Company may give related instructions to its transfer agent, if any, to stop registration of the
transfer of the Restricted Shares in violation of this Agreement or any applicable law.
6. Obligations Upon Termination of Employment. In connection with Recipient’s
employment by the Company, the Company or an Affiliate shall provide Recipient with access to the
confidential information of the Company and its Affiliates, or shall provide Recipient the
opportunity to develop business good will inuring to the benefit of the Company and its Affiliates,
or shall entrust business opportunities to Recipient. Recipient has agreed, and hereby agrees, as
specified in more detail in the Employment Agreement and/or Recipient’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 Restricted Shares, 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 Recipient, and the business
opportunities that have been and will in the future be disclosed or entrusted to Recipient by the
Company and its Affiliates, and as an additional incentive for the Company and Recipient to enter
into this Agreement, the Company and Recipient agree that if, during the term of Recipient’s
employment with the Company or its Affiliates or within a 12-month period (or such longer period,
if any, as required for non-competition by Recipient under the terms of his or her Employment
Agreement) following the date upon which Recipient terminates employment with the Company (the
“Restrictive Period”), Recipient fails for any reason to comply with any of the restrictive
covenants set forth in the Employment Agreement (as in effect on the original effective date of the
Employment Agreement), then the Company shall be entitled to recover from Recipient, and Recipient
shall pay to the Company, an amount of money equal to A multiplied by B, where A equals the
value
(determined as of the date the Forfeiture Restrictions lapse) of the Restricted Shares with respect
to which the Forfeiture Restrictions lapse during the one-year period preceding (and including) the
date of Recipient’s termination of employment with the Company and its Affiliates, and B equals the
fraction X divided by Y, where X equals the number of days in the Restrictive Period
minus the number of consecutive days following Recipient’s termination of employment with
the Company during which Recipient remained in compliance with the restrictive covenants set forth
in the Employment Agreement, and Y equals the number of days in the Restrictive Period.
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7. Employment Relationship. For purposes of this Agreement, Recipient shall be
considered to be in the employment of the Company as long as Recipient remains an employee of
either the Company, an Affiliate, or a successor corporation. Nothing in the adoption of the Plan,
nor the award of the Restricted Shares thereunder pursuant to this Agreement, shall confer upon
Recipient the right to continued employment by the Company or any of its Affiliates or affect in
any way the right of the Company to terminate such employment at any time. Unless otherwise
specifically provided in a written employment agreement or by applicable law, Recipient’s
employment by the Company shall be on an at-will basis, and the employment relationship may be
terminated at any time by either Recipient or the Company for any reason whatsoever, with or
without cause. Any question as to whether and when there has been a Termination of Employment of
the Recipient with the Company, and the cause of such termination, shall be determined by the
Committee, and its determination shall be final.
8. Notices. Any notices or other communications provided for in this Agreement shall
be sufficient if in writing. In the case of Recipient, such notices or communications shall be
effectively delivered if hand delivered to Recipient at his principal place of employment or if
sent by registered or certified mail to Recipient at the last address Recipient has filed with the
Company. In the case of the Company, such notices or communications shall be effectively delivered
if sent by registered or certified mail to the Company at its principal executive offices.
9. Entire Agreement; Amendment. This Agreement replaces and merges all previous
agreements and discussions relating to the same or similar subject matters between Recipient and
the Company and constitutes the entire agreement between Recipient and the Company with respect to
the subject matter of this Agreement. This Agreement may not be modified in any respect by any
verbal statement, representation or agreement made by any employee, officer, or representative of
the Company or by any written agreement unless signed by an officer of the Company who is expressly
authorized by the Company to execute such document.
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
Recipient. In the event of a conflict between the text of this Agreement and the Employment
Agreement, the text of this Agreement shall control.
11. 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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