Amendment No. 5 to Executive Employment Agreement
Exhibit 10.7(f)
This Amendment No. 5 to the Executive Employment Agreement dated as of April 1, 2000 (the
“Agreement”) between BMC Software, Inc. (the “Employer”) and the undersigned executive (the
“Executive”) is entered into as of this 31st day of January, 2004 (the “Effective 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, effective as of the Effective Date:
1. The last paragraph of Section 6.5 of the Agreement (which was added pursuant to Amendment
No. 2 to the Agreement) shall be deleted and the following shall be substituted therefor:
“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 6.5, 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 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.”
1
2. The following new Section 9.16 shall be added to the end of Article 9 of the Agreement:
“9.16 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. 5 to this Agreement (the “Effective Date”) with respect to which the
purchase price per share of common stock of the Employer under such option (as
adjusted through the Effective 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 Effective Date. The provisions of this Section
9.16 shall survive the termination of this Agreement.”
3. This Amendment No. 5 (a) shall supersede any prior agreement between the Employer and the
Executive relating to the subject matter of this Amendment No. 5 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.
4. Except as expressly modified by this Amendment No. 5, 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. 5 as of
the day and year first above written.
EXECUTIVE
|
EMPLOYER | |
| BMC SOFTWARE, INC. | ||
/s/ XXX XXXXXX
|
By: /s/ XXXXXX XXXXX | |
Xxx Xxxxxx |
2
