Amendment to Executive Employment Agreement
Exhibit 10.33
Amendment to Executive Employment Agreement
This Amendment (the “Amendment”) to Executive Employment Agreement is entered into
and is effective as of November 10, 2011, by and between Xxxxxxx X. Xxxxxxx, an individual (the
“Executive”) and BMC Software, Inc., a Delaware corporation (the “Employer”). The Employer and
Executive are each a “party” and are together “parties” to this Amendment.
RECITALS
The Employer and Executive have entered into that certain Executive Employment Agreement,
dated November 19, 2008, as amended (the “Employment Agreement”).
For good and valuable consideration, receipt of which is hereby acknowledged by both the
Employer and Executive, the parties desire to amend the Employment Agreement as set forth below.
AMENDMENT
1. Section 6.4 of the Employment Agreement shall be deleted in its entirety and replaced with
the following:
“6.4 SEVERANCE
Should the Executive experience a termination of employment during the Employment Period
pursuant to Section 6.1(e) or Section 6.1(f) above, then, subject to Executive executing, and
failing to revoke during any applicable revocation period, a general release of all claims against
Employer and its Affiliates in a form acceptable to the Employer within forty-five (45) days after
Executive’s termination of employment, the Executive shall be entitled to:
(i) a lump sum payment equal to two (2) years of his then current Base Salary;
(ii) a lump sum payment equal to two (2) times his then current cash bonus target
amount; and
(iii) a lump sum payment of a prorated bonus for the bonus period during which the
termination of employment occurs determined by multiplying (A) the bonus, if any, Executive
would have been entitled to receive for such bonus period if Executive’s employment had not
terminated (based on actual performance during such bonus period) by (B) a fraction, the
numerator of which is the number of days Executive was employed with the Company during the
applicable bonus period and the denominator of which is the total number of calendar days in
such bonus period.
Subject to Section 6.7, such lump sum payment under this Section will be made no later than
sixty (60) days following the Executive’s Separation from Service on or after the date the
Executive’s employment is terminated, provided, that if such period of 60 days spans two taxable
years, the severance will be paid in the second taxable year, and provided, further, that the
prorated bonus referred to in Section 6.4(iii) above will be paid at the same time bonuses for the
applicable bonus period, if any, are paid to the Company’s executive officers generally.
Severance payments do not result in extending employment beyond the termination date.”
2. Section 6.5(a) of the Employment Agreement shall be deleted in its entirety and replaced
with the following:
“(a) If, within 12 months after a Change of Control, the Executive’s position is
eliminated or the Executive’s employment is terminated pursuant to Section 6.1(e) or 6.1(f)
above, then, subject to Executive executing, and failing to revoke during any applicable
revocation period, a general release of all claims against Employer and its Affiliates in a
form acceptable to the Employer within forty-five (45) days after termination of the
Executive’s employment, the Executive shall be entitled to the following in lieu of the
amounts set forth in Section 6.4:
(i) a lump sum payment equal to two (2) times his then current Base Salary;
(ii) a lump sum payment equal to two (2) times his then current cash bonus
target amount;
(iii) a lump sum payment of a prorated bonus for the bonus period during which
the termination of employment occurs determined by multiplying (A) the bonus, if
any, Executive would have been entitled to receive for such bonus period if
Executive’s employment had not terminated (based on actual performance during such
bonus period) by (B) a fraction, the numerator of which is the number of days
Executive was employed with the Company during the applicable bonus period and the
denominator of which is the total number of calendar days in such bonus period;
(iv) vesting of Executive’s equity awards, if any, to the extent provided for
under the terms and conditions of the equity award agreements;
(v) a lump sum payment equal to the cost of COBRA coverage for 18 months for
continued medical benefits for the Executive and his dependents (including his
spouse) who were covered as of such termination event under the medical benefit
plan as in effect for employees of the Employer during the coverage period, or the
substantial equivalence; and
(vi) a lump sum payment equal to the aggregate of eighteen (18) months of
premiums for the Executive’s individual basic life insurance policy provided by the
Employer’s group life insurance carrier upon conversion of the Executive’s coverage
under the Employer’s group life insurance plan to an individual policy as of such
termination event, provided the Executive timely elects (but in no event later than
sixty (60) days after the Executive’s Separation from Service) to convert his life
insurance coverage provided under the Employer’s group life insurance plan to an
individual policy.
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Subject to Section 6.7, such lump sum payments under this Section shall be made no
later than sixty (60) days following the Executive’s Separation from Service on or after the
date the Executive’s employment is terminated, provided, that if such period of
60 days spans two taxable years, the severance will be paid in the second taxable
year, and provided, further, that the prorated bonus referred to in Section 6.5(a)(iii)
above will be paid at the same time bonuses for the applicable bonus period, if any, are
paid to the Company’s executive officers generally. Severance payments do not result in
extending employment beyond the termination date.”
3. The foregoing amendments to the Employment Agreement shall be effective as of the date
written above. Except as modified above, the Employment Agreement remains in full force and effect
and this Amendment may be amended or altered only in a writing signed by the Employer and
Executive.
4. This Amendment constitutes the entire agreement between the Employer and Executive relating
to the Sections of the Employment Agreement discussed above and supersedes and replaces any prior
verbal or written agreements between the parties as to the subject matter of those provisions.
IN WITNESS WHEREOF, Executive and the Employer have executed this Amendment as of the date
first above written.
| EXECUTIVE |
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| /s/ XXXXXXX X. XXXXXXX | ||||
| Xxxxxxx X. Xxxxxxx | ||||
| BMC SOFTWARE, INC. |
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| By: | /s/ XXXXXX X. XXXXXX | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| Title: | Senior Vice President, Administration | |||
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