EX-10.21
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c70064exv10w21.htm
EXHIBIT 10.21
Exhibit 10.21
EXECUTIVE EMPLOYMENT AGREEMENT
This Employment Agreement (this “Agreement”) is made as of September 25, 2006 (the Effective
Date”), by and between BMC Software, Inc., a Delaware corporation (the “Employer”), and Xxx X.
Xxxxx (the “Executive”). The Employer and the Executive are each a “party” and are
together “parties” to this Agreement.
RECITALS
WHEREAS, the Employer desires to employ the Executive, and the Executive wishes to accept such
employment, upon the terms and conditions set forth in this Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the employment compensation to be paid to the Executive and
other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties, intending to be legally bound, agree as follows:
For the purposes of this Agreement, the following terms have the meanings specified or
referred to in this Section 1.
“Agreement” refers to this Employment Agreement, including all Exhibits attached hereto, as
amended from time to time.
“Benefits” as defined in Section 3.1(b).
“Board of Directors” refers to the board of directors of the Employer.
“Change of Control” refers to (i) the acquisition of at least 50% of Employer’s outstanding
voting stock; (ii) an unapproved change in the majority of the Employer’s board of directors; (iii)
a merger, consolidation, or similar corporate transaction in which the Company’s shareholders
immediately prior to the transaction do not own more than 60% of the voting stock of the surviving
corporation in the transaction; and (iv) shareholder approval of the company’s liquidation,
dissolution, or sale or substantially all of its assets.
“Confidential Information” means any and all:
| | a. | | trade secrets (as defined herein) concerning the business and
affairs of the Employer, product specifications, data, know-how, formulae,
compositions, processes, designs, sketches, photographs, graphs, drawings,
samples, inventions and ideas, past, current, and planned research and
development, current and planned manufacturing or distribution methods and
processes, customer lists, current and anticipated customer requirements, price
lists, market studies, business plans, computer software and programs
(including object code and source code), computer software and database
technologies, systems, structures, and architectures (and related formulae,
compositions, processes,
improvements, devices, know-how, inventions, discoveries, concepts, ideas,
designs, methods and information), and any other information, however
documented, that is a trade secret;
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| | b. | | information concerning the business and affairs of the Employer
(which includes historical financial statements, financial projections and
budgets, historical and projected sales, capital spending budgets and plans,
the names and backgrounds of key personnel, personnel training and techniques
and materials), however documented; and
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| | c. | | notes, analysis, compilations, studies, summaries, and other
material prepared by or for the Employer containing or based, in whole or in
part, on any information included in the foregoing.
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“Disability” as defined in Section 6.2.
“Effective Date” is the date stated in the first paragraph of the Agreement.
“Employee Invention” shall mean any idea, invention, technique, modification, process, or
improvement (whether patentable or not), any industrial design (whether registerable or not), any
mask work, however fixed or encoded, that is suitable to be fixed, embedded or programmed in a
semiconductor product (whether recordable or not), and any work of authorship (whether or not
copyright protection may be obtained for it) created, conceived, or developed by the Executive,
either solely or in conjunction with others, during the Employment Period, or a period that
includes a portion of the Employment Period, that relates in any way to, or is useful in any manner
in, the business then being conducted or proposed to be conducted by the Employer, and any such
item created by the Executive, either solely or in conjunction with others, following termination
of the Executive’s employment with the Employer, that is based upon or uses Confidential
Information.
“Employment Period” is the term of the Executive’s employment under this Agreement.
“Fiscal Year” shall mean the Employer’s fiscal year, which shall end on March 31 of each year,
or as changed from time to time.
“for cause” as defined in Section 6.3.
“Good Reason” as defined in Section 6.3.
“person” is any individual, corporation (including any non-profit corporation), general or
limited partnership, limited liability company, joint venture, estate, trust, association,
organization, or governmental body.
“Proprietary Items” as defined in Section 7.2(a)(iv).
“Salary” as defined in Section 3.1(a).
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“trade secrets” shall mean the whole or any part of any scientific or technical information,
design, process, procedure, formula, or improvement that has value and that the owner has taken
measures to prevent from becoming available to persons other than those selected by the owner to
have access for limited purposes.
| 2. | | EMPLOYMENT TERMS AND DUTIES
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The Employer hereby employs the Executive, and the Executive hereby accepts employment by the
Employer, upon the terms and conditions set forth in this Agreement.
Subject to the provisions of Section 6, the term of the Executive’s employment under this
Agreement will commence upon the Effective Date and shall continue in effect through the third
anniversary of the Effective Date (the “Employment Period”); provided, however, that, subject to
the provisions of Section 6, commencing on the day after the Effective Date 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.
The Executive will have such duties as are assigned or delegated to the Executive by the Board
of Directors, and will initially serve as the Employer’s Senior Vice President — Business
Operations. The Executive will devote his entire business time, attention, skill, and energy
exclusively to the business of the Employer, will use his best efforts to promote the success of
the Employer’s business, and will cooperate fully with the Board of Directors in the advancement of
the best interests of the Employer. The Executive’s employment will be subject to the policies
maintained and established by the Employer, from time to time. Nothing in this Section 2.3,
however, will prevent the Executive from engaging in additional activities in connection with
passive personal investments and community affairs that are not inconsistent with the Executive’s
duties under this Agreement. Additionally, nothing in this Section 2.3 will prevent the Executive
from serving on the Board of Directors of other companies or organizations, or engaging in other
activities, so long as such participation does not conflict with the interests or business of
Employer or require such involvement as to interfere with the performance of the Executive’s duties
hereunder and has been expressly approved by the Chief Executive Officer of Employer. If the
Executive is elected as a director of the Employer or as a director or officer of any of its
affiliates, the Executive will fulfill his duties as such director or officer without additional
compensation. The Executive acknowledges and agrees that he owes a fiduciary duty of loyalty,
fidelity and allegiance to act at all times in the best interests of the Employer.
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| | a. | | Salary. During the Employment Period, the Executive
will be paid an annual base salary of $400,000 (the “Salary”), which will be
payable in twenty-four (24) equal installments according to the Employer’s
customary payroll practices. Executive may be subject to such increases in
Salary as deemed appropriate in the sole discretion of the Compensation
Committee of the Board of Directors of Employer.
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| | b. | | Benefits. The Executive will, during the Employment
Period, be permitted to participate in such pension, profit sharing, life
insurance, hospitalization, major medical, and other employee benefit plans of
the Employer that may be in effect from time to time, to the extent the
Executive is eligible under the terms of those plans (collectively, the
“Benefits”).
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| | c. | | Cash Bonus. Executive will be eligible for a cash
bonus based as described in Attachment A incorporated herein by reference.
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| | d. | | Restricted Stock. Executive will, upon execution of
this agreement and approval of the Compensation Committee, receive 80,000
shares of performance-based restricted stock which will vest based upon the
achievement of the Company’s EPS targets for fiscal 2008 and 2009, such
restricted shares to be subject to the terms and conditions of the BMC
Software, Inc 1994 Employee Incentive Plan, as amended (the “Plan”), and the
Performance-Based Restricted Stock Agreement.
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| | e. | | Stock Options. Executive will, pending approval of the
Compensation Committee, receive stock options to purchase 40,000 shares of
Employer’s stock which will vest monthly over four years based on continuous
employment with Employer. The actual grant date and exercise price will be
established by the Compensation Committee on the first Monday of the month
following Executive’s first day of employment, consistent with the Plan and the
Employer’s current stock option granting policy. The stock options will be
subject to the terms and conditions of the Plan and the Stock Option Agreement
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| | f. | | Long-Term Incentive Plan. Executive will be eligible
(beginning April 1, 2007) to participate in the BMC Long-Term Incentive Plan
providing a 3-year cash plan based on Employer’s total shareholder return
against a peer group of companies with the first plan for new members divided
into two target payments: 18-month payment (target is at $150,000 payment) and
36-month payment (target is at $150,000 payment).
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| 4. | | FACILITIES AND EXPENSES
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The Employer will furnish the Executive office space, equipment, supplies, and such
other facilities and personnel as the Employer deems necessary or appropriate for the
performance of the Executive’s duties under this Agreement.
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The Employer will pay on behalf of the Executive (or reimburse the Executive for)
reasonable expenses incurred by the Executive at the request of, or on behalf of, the
Employer in the performance of the Executive’s duties pursuant to this Agreement, and in
accordance with the Employer’s employment policies, including reasonable expenses incurred
by the Executive in attending business meetings, in appropriate business entertainment
activities, and for promotional expenses. The Executive must file expense reports with
respect to such expenses in accordance with the Employer’s policies then in effect.
| 5. | | VACATIONS AND HOLIDAYS
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The Executive will be entitled to paid vacation during the term of the Agreement in accordance
with the vacation policies of the Employer in effect for its employees from time to time. The
Executive will also be entitled to the paid holidays and other paid leave set forth in the
Employer’s policies.
| | 6.1 | | EVENTS OF TERMINATION
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The Employment Period, the Executive’s Salary and any and all other rights of the Executive
under this Agreement or otherwise as an employee of the Employer will terminate (except as
otherwise provided in this Section 6):
| | a. | | upon the death of the Executive;
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| | b. | | upon the Disability (as defined in Section 6.2) of the
Executive immediately upon notice from either party to the other;
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| | c. | | upon termination by the Employer for cause (as defined in
Section 6.3);
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| | d. | | upon the voluntary retirement from or voluntary resignation of
employment by the Executive for any reason other than those set forth in
Section 6.1(f) below;
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| | e. | | upon termination by the Employer for any reason other than
those set forth in Section 6.1(a) through 6.1(d) above; or
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| | f. | | upon voluntary resignation of employment by the Executive
within 60 days of the occurrence of an event that constitutes Good Reason, as
defined in Section 6.3 below.
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Upon termination of the Employment Period, as provided above or otherwise, Executive’s rights
respecting Benefits, Restricted Stock, Stock Options and Cash Bonus will be determined under the
applicable plan or program providing the same.
| | 6.2 | | DEFINITION OF DISABILITY
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For purposes hereof, the term “Disability” shall mean an incapacity by accident, illness or
other circumstance which renders the Executive mentally or physically incapable of performing the
duties and services required of the Executive hereunder on a full-time basis for a period of at
least 180 consecutive days.
| | 6.3 | | DEFINITION OF “FOR CAUSE” AND “GOOD REASON”
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| | a. | | For purposes of Section 6.1, the phrase “for cause” means: (i)
the Executive’s continued and material failure to perform his obligations under
this Agreement; (ii) the Executive’s material failure to adhere to any Employer
policy or code of conduct; (iii) the appropriation (or attempted appropriation)
of a material business opportunity of the Employer, including attempting to
secure or securing any personal profit in connection with any transaction
entered into on behalf of the Employer; (iv) the Executive’s engaging in
conduct that is materially injurious to the Employer, (v) the misappropriation
(or attempted misappropriation) of any of the Employer’s funds or property;
(vi) the conviction of or the entering of a guilty plea or plea of no contest
with respect to, a felony, the equivalent thereof, or any other crime with
respect to which imprisonment is a punishment; or (vii) the conviction of the
Executive by a court of competent jurisdiction of a crime involving moral
turpitude. The determination of whether the Executive’s employment is
terminated for cause shall be made solely by the Employer, which shall act in
good faith in making such determination.
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| | b. | | “Good Reason” means:
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| | i. | | The occurrence, prior to a Change of Control or
on or after the date which is 12 months after a Change of Control
occurs, of any one or more of the following events without the
Executive’s express written consent: (i) a reduction in the Executive’s
Salary or target bonus amount from that provided to him immediately on
the Effective Date of this Agreement (or the effective date of any
extension of this Agreement pursuant to Paragraph 7(a)) or as the same
may be increased from time to time; or (ii) a diminution in employee
benefits (including but not limited to medical, dental, life insurance
and long-term disability plans) and perquisites applicable to the
Executive from those substantially similar to the employee benefits and
perquisites provided by the Employer
(including subsidiaries) to executives with comparable duties, as
such benefits may be modified from time to time; or
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| | ii. | | The occurrence, within 12 months after the date
upon which a Change of Control occurs, of any one or more of the
following events without Executive’s express written consent: (i) a
reduction by the Employer or a subsidiary thereof in Executive’s Salary
or bonus target amount as in effect immediately prior to the Change of
Control or as the same may be increased from time to time or a change
in the eligibility requirements or performance criteria under any
bonus, incentive or compensation plan, program or arrangement under
which Executive is covered immediately prior to the Change of Control
which adversely affects Executive; (ii) the Employer or a subsidiary
thereof requiring Executive to be permanently based anywhere other than
within 50 miles of Executive’s job location at the time of the Change
of Control; (iii) without replacement by a plan providing benefits to
Executive equal to or greater than those discontinued, the failure by
the Employer or a subsidiary thereof to continue in effect, within its
maximum stated term, any pension, bonus, incentive, stock ownership,
purchase, option, life insurance, health, accident, disability, or any
other employee benefit plan, program or arrangement in which Executive
is participating at the time of the Change of Control, or the taking of
any action by the Employer or a subsidiary thereof that would adversely
affect Executive’s participation or materially reduce Executive’s
benefits under any of such plans; (iv) the taking of any action by the
Employer or a subsidiary thereof that would materially adversely affect
the physical conditions existing at the time of the Change of Control
in or under which Executive performs his employment duties; (v) if
Executive’s primary employment duties are with a subsidiary of the
Employer, the sale, merger, contribution, transfer or any other
transaction in conjunction with which the Employer’s ownership interest
in the subsidiary decreases below a majority interest; or
(vi) any material variance from the terms of this Agreement by the
Employer or a subsidiary thereof.
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Should the Executive’s employment with the Employer be terminated during the Employment Period
pursuant to Section 6.1(e) or Section 6.1(f) above, the Executive shall be entitled to:
| | a. | | a payment equal to one (1) year of his then current Salary; and
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| | b. | | a payment equal to one (1) year of his then current cash bonus
target amount.
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Such payments under this section will be made no later than 30 days following the termination
from employment. Severance payments do not constitute continued employment beyond the termination
date.
If, within 12 months of a Change of Control, the Executive’s position is eliminated or the
Executive is terminated pursuant to Section 6.1(e) or 6.1(f) above, regardless of whether such
termination event occurs during or after the Employment Period, the Executive shall be entitled to
the following in lieu of the amounts set forth in Section 6.4:
| | a. | | a payment equal to one (1) year of his then current Salary;
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| | b. | | a payment equal to one (1) times his then current cash bonus
target amount;
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| | c. | | vesting of Executive’s stock option and restricted stock
awards, if any, subject to the terms and conditions of the respective stock
option and restricted stock agreements; and
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| | d. | | continued medical and life insurance benefits at no cost to the
Executive, for the Executive and his dependents (including his spouse) who were
covered as of such termination event under the medical and life insurance
benefit plan as in effect for employees of the Employer during the coverage
period, or the substantial equivalence, for 18 months or until such time that
he is re-employed and is provided medical and life insurance benefits (which
coverage shall be promptly reported to the Employer by the Executive) whichever
is sooner.
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Severance payments do not constitute continued employment beyond the termination date.
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
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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.
Any remuneration received by the Executive from a third party following the Employment Period shall
not apply to reduce the Employer’s obligations to make payments hereunder.
Due to the difficulties in estimating damages for an early termination of the Employment Period,
the Employer and the Executive agree that the payments, if any, to be received by the Executive
hereunder shall be received as liquidated damages.
| 7. | | NON-DISCLOSURE COVENANT; EMPLOYEE INVENTIONS
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| | 7.1 | | ACKNOWLEDGMENTS BY THE EXECUTIVE
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The Executive acknowledges that (a) prior to and during the Employment Period and as a part of
his employment, the Executive has been and will be afforded access to Confidential Information; (b)
public disclosure of such Confidential Information could have an adverse effect on the Employer and
its business; (c) because the Executive possesses substantial technical expertise and skill with
respect to the Employer’s business, the Employer desires to obtain exclusive ownership of each
Employee Invention, and the Employer will be at a substantial competitive disadvantage if it fails
to acquire exclusive ownership of each Employee Invention; and (d) the provisions of this Section 7
are reasonable and necessary to prevent the improper use or disclosure of Confidential Information
and to provide the Employer with exclusive ownership of all Employee Inventions.
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| | 7.2 | | AGREEMENTS OF THE EXECUTIVE
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In consideration of the compensation and benefits to be paid or provided to the Executive by
the Employer under this Agreement, the Executive covenants the following:
| | i. | | The Executive will hold in confidence the
Confidential Information and will not disclose it to any person except
with the specific prior written consent of the Employer or except as
otherwise expressly permitted by the terms of this Agreement.
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| | ii. | | Any trade secrets of the Employer will be
entitled to all of the protections and benefits under any applicable
law. If any information that the Employer deems to be a trade secret
is found by a court of competent jurisdiction not to be a trade secret
for purposes of this Agreement, such information will, nevertheless, be
considered Confidential Information for purposes of this Agreement.
The Executive hereby waives any requirement that the Employer submit
proof of the economic value of any trade secret or post a bond or other
security.
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| | iii. | | None of the foregoing obligations and
restrictions applies to any part of the Confidential Information that
the Executive demonstrates was or became generally available to the
public other than as a result of a disclosure by the Executive.
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| | iv. | | The Executive will not remove from the
Employer’s premises (except to the extent such removal is for purposes
of the performance of the Executive’s duties at home or while
traveling, or except as otherwise specifically authorized by the
Employer) any document, record, notebook, plan, model, component,
device, or computer software or code, whether embodied in a disk or in
any other form (collectively, the “Proprietary Items”). The Executive
recognizes that, as between the Employer and the Executive, all of the
Proprietary Items, whether or not developed by the Executive, are the
exclusive property of the Employer. Upon termination of this Agreement
by either party, or upon the request of the Employer during the
Employment Period, the Executive will return to the Employer all of the
Proprietary Items in the Executive’s possession or subject to the
Executive’s control, and the Executive shall not retain any copies,
abstracts, sketches, or other physical embodiment of any of the
Proprietary Items.
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| | b. | | Employee Inventions. Each Employee Invention will
belong exclusively to the Employer. The Executive acknowledges that all of the
Executive’s writing, works of authorship, and other Employee Inventions are
works made for hire and the property of the Employer, including any copyrights,
patents, or other intellectual property rights pertaining thereto. If it is
determined that any such works are not works made for hire, the Executive
hereby assigns to the Employer all of the Executive’s right, title, and
interest, including all rights of copyright, patent, and other intellectual
property rights, to or in such Employee Inventions. The Executive covenants
that he will promptly:
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| | i. | | disclose to the Employer in writing any
Employee Invention;
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| | ii. | | assign to the Employer or to a party designated
by the Employer, at the Employer’s request and without additional
compensation, all of the Executive’s right to the Employee Invention
for the United States and all foreign jurisdictions;
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| | iii. | | execute and deliver to the Employer such
applications, assignments, and other documents as the Employer may
request in order to apply for and obtain patents or other registrations
with respect to any Employee Invention in the United States and any
foreign jurisdictions;
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| | iv. | | sign all other papers necessary to carry out
the above obligations; and
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| | v. | | give testimony and render any other assistance
in support of the Employer’s rights to any Employee Invention.
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| | c. | | Notice of Intent to Resign. Except in the event of a
resignation for Good Reason, Executive agrees to provide Employer with 90 days
advance notice of his intention to resign (“Notice Period”). During the Notice
Period, Executive shall continue in the diligent fulfillment of all duties of
his position and this Agreement. Should Executive fail to provide Employer
with the full Notice Period, Executive shall forfeit that portion of his earned
pro-rata yearly cash bonus as follows:
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(90 - (number of full days of advance notice) / 90) X(times) pro-rata
earned yearly cash bonus = amount forfeited by Executive.
Pro-rata earned yearly cash bonus is: (unconditional portion of yearly cash
bonus, if any, targeted for Executive in the current Fiscal Year) / (number
of full months worked in the current Fiscal Year / 12).
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| | d. | | NonDisparagement. Executive shall not disparage the
Employer or any of its shareholders, directors, officers, employees, or agents.
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| | e. | | Creative Works. Executive shall not create, assist
with or consult on any creative works which discuss, describe or reference
Employer or any executive of Employer. Creative works includes but is not
limited to novels, nonfiction writings, any authored work, plays, screenplays,
musicals or the like.
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| | 7.3 | | DISPUTES OR CONTROVERSIES
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The Executive recognizes that should a dispute or controversy arising from or relating to this
Agreement be submitted for adjudication to any court, arbitration panel, or other third party, the
preservation of the secrecy of Confidential Information may be jeopardized. All pleadings,
documents, testimony, and records relating to any such adjudication will be maintained in secrecy
and will be available for inspection by the Employer, the Executive, and their respective attorneys
and experts, who will agree, in advance and in writing, to receive and maintain all such
information in secrecy, except as may be limited by them in writing.
| 8. | | NON-COMPETITION AND NON-INTERFERENCE
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| | 8.1 | | ACKNOWLEDGMENTS BY THE EXECUTIVE
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The Executive acknowledges that: (a) the services to be performed by him under this Agreement
are of a special, unique, unusual, extraordinary, and intellectual character; (b) the Employer’s
business is international in scope and its products are marketed throughout the United States and
the world; (c) the Employer competes with other businesses that are or could be located in any part
of the United States or the world; (d) the provisions of this Section 8 are reasonable and
necessary to protect the Employer’s business; and (e) in connection with the fulfillment of his
duties hereunder and as an employee of the Employer, the Employer will provide Executive with
Confidential Information necessitating the execution of the covenants contained in this Section 8.
| | 8.2 | | COVENANTS OF THE EXECUTIVE
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In consideration of the acknowledgments by the Executive, and in consideration of the
compensation and benefits to be paid or provided to the Executive by the Employer, the Executive
covenants that during and for eighteen months following the Employment Period he will not, directly
or indirectly:
| | a. | | except in the course of his employment hereunder, engage or
invest in, own, manage, operate, finance, control, or participate in the
ownership, management, operation, financing, or control of, be employed by,
associated with, or in any manner connected with, lend the Executive’s name or
any similar name to, lend Executive’s credit to or render services or advice
to, any business whose products or activities compete in whole
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| | | | or in part with the products or activities of the Employer anywhere in the
world, provided, however, that the Executive may purchase or otherwise
acquire up to (but not more than) five percent (5%) of any class of
securities of any enterprise (but without otherwise participating in the
activities of such enterprise) if such securities are listed on any national
or regional securities exchange or have been registered under Section 12(g)
of the Securities Exchange Act of 1934, as amended;
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| | b. | | whether for the Executive’s own account or for the account of
any other person, solicit business of the same or similar type being carried on
by the Employer, from any person known by the Executive to be a customer or a
potential customer of the Employer, whether or not the Executive had personal
contact with such person during and by reason of the Executive’s employment
with the Employer;
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| | c. | | whether for the Executive’s own account or the account of any
other person, (i) solicit, employ, or otherwise engage as an employee,
independent contractor, or otherwise, any person who is an employee (or was an
employee within two (2) years of the date in question) of the Employer at any
time during the Employment Period or in any manner induce or attempt to induce
any employee of the Employer to terminate his or her employment with the
Employer; or (ii) interfere with the Employer’s relationship with any person,
including any person who at any time during the Employment Period was an
employee, contractor, supplier, or customer of the Employer; or
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If any covenant in this Section 8.2 is held to be unreasonable, arbitrary, or against public
policy, such covenant will be considered to be divisible with respect to scope, time, and
geographic area, and such lesser scope, time, or geographic area, or all of them, as a court of
competent jurisdiction may determine to be reasonable, not arbitrary, and not against public
policy, will be effective, binding, and enforceable against the Executive.
The period of time applicable to any covenant in this Section 8.2 will be extended by the
duration of any violation by the Executive of such covenant.
| | 9.1 | | INJUNCTIVE RELIEF AND ADDITIONAL REMEDY
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The Executive acknowledges that the injury that would be suffered by the Employer as a result
of a breach of the provisions of this Agreement (including any provision of Sections 7 and 8) would
be irreparable and that an award of monetary damages to the Employer for such a breach would be an
inadequate remedy. Consequently, the Employer will have the right, in addition to any other rights
it may have, to obtain injunctive relief to restrain any breach or threatened breach or otherwise
to specifically enforce any provision of this Agreement, and the Employer will not be obligated to
post bond or other security in seeking such relief.
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| | 9.2 | | COVENANTS OF SECTIONS 7 AND 8 ARE ESSENTIAL AND INDEPENDENT COVENANTS
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The covenants by the Executive in Sections 7 and 8 are essential elements of this Agreement,
and without the Executive’s agreement to comply with such covenants, the Employer would not have
entered into this Agreement or employed the Executive. The Employer and the Executive have
independently consulted with their respective counsel and have been advised in all respects
concerning the reasonableness and propriety of such covenants, with specific regard to the nature
of the business conducted by the Employer.
If the Executive’s employment hereunder expires or is terminated, this Agreement will continue
in full force and effect as is necessary or appropriate to enforce the covenants and agreements of
the Executive in Sections 7 and 8.
| | 9.3 | | REPRESENTATIONS AND WARRANTIES BY THE EXECUTIVE
|
The Executive represents and warrants to the Employer that the execution and delivery by the
Executive of this Agreement do not, and the performance by the Executive of the Executive’s
obligations hereunder will not, with or without the giving of notice or the passage of time, or
both: (a) violate any judgment, writ, injunction, or order of any court, arbitrator, or
governmental agency applicable to the Executive; or (b) conflict with, result in the breach of any
provisions of or the termination of, or constitute a default under, any agreement to which the
Executive is a party or by which the Executive is or may be bound. The Executive further
specifically represents and warrants that he is not subject to, nor will he violate, any agreement
not to compete upon the execution and delivery by him of this Agreement.
The Executive represents and warrants that he will not utilize or divulge any proprietary
materials or information from his previous employers and acknowledges that Employer has prohibited
Executive from bringing any such materials on to Employer’s premises and has advised Executive that
Executive’s failure to adhere to these prohibitions will subject Executive to immediate
termination.
| | 9.4 | | OBLIGATIONS CONTINGENT ON PERFORMANCE
|
The obligations of the Employer hereunder, including its obligation to pay the compensation
provided for herein, are contingent upon the Executive’s performance of the Executive’s obligations
hereunder.
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The rights and remedies of the parties to this Agreement are cumulative and not alternative.
Neither the failure nor any delay by either party in exercising any right, power, or privilege
under this Agreement will operate as a waiver of such right, power, or privilege, and no single or
partial exercise of any such right, power, or privilege will preclude any other or further exercise
of such right, power, or privilege or the exercise of any other right, power, or privilege. To the
maximum extent permitted by applicable law, (a) no claim or right arising out of this Agreement can
be discharged by one party, in whole or in part, by a waiver or renunciation of the claim or right
unless in writing signed by the other party; (b) no waiver that may be given by a party will be
applicable except in the specific instance for which it is given; and (c) no notice to or demand on
one party will be deemed to be a waiver of any obligation of such party or of the right of the
party giving such notice or demand to take further action without notice or demand as provided in
this Agreement.
| | 9.6 | | BINDING EFFECT; DELEGATION OF DUTIES PROHIBITED
|
This Agreement shall inure to the benefit of, and shall be binding upon, the parties hereto
and their respective successors, assigns, heirs, and legal representatives, including any entity
with which the Employer may merge or consolidate or to which all or substantially all of its assets
may be transferred. The duties and covenants of the Executive under this Agreement, being
personal, may not be delegated or assigned.
All notices, consents, waivers, and other communications under this Agreement must be in
writing and will be deemed to have been duly given when (a) delivered by hand (with written
confirmation of receipt), (b) sent by facsimile (with written confirmation of receipt), provided
that a copy is mailed by registered mail, return receipt requested and signed for by the party
required to receive notice, or (c) when received by the addressee, if sent by a nationally
recognized overnight delivery service (receipt requested), in each case to the appropriate
addresses and facsimile numbers set forth below (or to such other addresses and facsimile numbers
as a party may designate by notice to the other parties):
If to Employer:
BMC Software, Inc.
0000 XxxxXxxx Xxxx
Xxxxxxx, Xxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: 000-000-0000
Attn: General Counsel
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If to the Executive:
Xxx X. Xxxxx
0000 Xxxxxxxx Xxxxx
Xxxxx, Xxxxx 00000
| | 9.8 | | ENTIRE AGREEMENT; AMENDMENTS
|
Except as provided in (a) plans and programs of the Employer referred to in Sections 3.1(b)
through (d), and (b) any signed written agreement contemporaneously or hereafter executed by the
Employer and the Executive, this Agreement contains the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreements and understandings, oral
or written, between the parties hereto with respect to the subject matter hereof. Notwithstanding
the foregoing, this Agreement shall not be construed to supersede any stock option agreements or
restricted stock agreements entered into between Executive and Employer at any time prior to the
execution of this Agreement. This Agreement may not be amended orally, but only by an agreement in
writing signed by the parties hereto.
This Agreement will be governed by the laws of the State of
Texas without regard to conflicts
of laws principles.
In the event that there shall be any dispute arising out of or in any way relating to this
Agreement, the contemplated transactions, any document referred to or incorporated herein by
reference or centrally related to the subject matter hereof, or the subject matter of any of the
same, the parties covenant and agree as follows:
| | a. | | The parties shall first use their reasonable best efforts to
resolve such dispute among themselves, with or without mediation.
|
| | b. | | If the parties are unable to resolve such dispute among
themselves, such dispute shall be submitted to binding arbitration in Houston,
Texas, under the auspices of, and pursuant to the rules of, the American
Arbitration Association’s Commercial Arbitration Rules as then in effect, or
such other procedures as the parties may agree to at the time, before a
tribunal of three (3) arbitrators, one of which shall be selected by the
Executive, one of which shall be selected by the Employer, and the third of
which shall be selected by the two (2) arbitrators so selected. Any award
issued as a result of such arbitration shall be final and binding between the
parties, and shall be enforceable by any court having jurisdiction over the
party against whom enforcement is sought. A ruling by the arbitrators
|
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| | | | shall be non-appealable. The parties agree to abide by and perform any
award rendered by the arbitrators. If either the Executive or Employer
seeks enforcement of the terms of this Agreement or seeks enforcement of any
award rendered by the arbitrators, then the prevailing party (designated by
the arbitrators) to such proceeding(s) shall be entitled to recover its
costs and expenses (including applicable travel expenses) from the
non-prevailing party, in addition to any other relief to which it may be
entitled. If a dispute arises and one party fails or refuses to designate
an arbitrator within thirty (30) days after receipt of a written notice that
an arbitration proceeding is to be held, then the dispute shall be resolved
solely by the arbitrator designated by the other party and such arbitration
award shall be as binding as if three (3) arbitrators had participated in
the arbitration proceeding. Either the Executive or the Employer may cause
an arbitration proceeding to commence by giving the other party notice in
writing of such arbitration. Executive and the Employer covenant and agree
to act as expeditiously as practicable in order to resolve all disputes by
arbitration. Notwithstanding anything in this section to the contrary,
neither Executive nor the Employer shall be precluded from seeking court
action in the event the action sought is either injunctive action, a
restraining order or other equitable relief. The arbitration proceeding
shall be held in English.
|
| | c. | | Legal process in any action or proceeding referred to in the
preceding section may be served on any party anywhere in the world.
|
| | d. | | Except as expressly provided herein and except for injunctions
and other equitable remedies that are required in order to enforce this
Agreement, no action may be brought in any court of law and EACH OF THE PARTIES
WAIVES ANY RIGHTS THAT IT MAY HAVE TO BRING A CAUSE OF ACTION IN ANY COURT OR
IN ANY PROCEEDING INVOLVING A JURY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Each party acknowledges that it has been represented by legal counsel of its
own choosing and has been advised of the intent, scope and effect of this
Section 9.10 and has voluntarily entered into this Agreement and this Section
9.10.
|
| | e. | | Excluded from this Section 9.10 are any claims for temporary
injunctive relief to enforce Sections 7 and 8 of this Agreement.
|
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| | 9.11 | | SECTION HEADINGS, CONSTRUCTION
|
The headings of Sections in this Agreement are provided for convenience only and will not
affect its construction or interpretation. All references to “Section” or “Sections” refer to the
corresponding Section or Sections of this Agreement unless otherwise specified. All words used in
this Agreement will be construed to be of such gender or number as the circumstances require.
Unless otherwise expressly provided, the word “including” does not limit the preceding words or
terms.
If any provision of this Agreement is held invalid or unenforceable by any court of competent
jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any
provision of this Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
This Agreement may be executed in one or more counterparts, each of which will be deemed to be
an original copy of this Agreement and all of which, when taken together, will be deemed to
constitute one and the same agreement.
| | 9.14 | | WAIVER OF JURY TRIAL
|
THE PARTIES HERETO HEREBY WAIVE A JURY TRIAL IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT.
| | 9.15 | | WITHHOLDING OF TAXES AND OTHER EMPLOYEE DEDUCTIONS
|
The Employer may withhold from any payments and benefits made pursuant to this Agreement all
federal, state, city, and other taxes as may be required pursuant to any law or governmental
regulation or ruling and all other normal deductions made with respect to the Employer’s employees
generally.
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the date
above first written above.
| | | | | |
| | EMPLOYER:
BMC Software, Inc.
| |
| | By: | /s/ XXXXXXX XXXXXXX
| |
| | | Name: | Xxxxxxx Xxxxxxx | |
| | | Title: | Sr. Vice President of Administration | |
| |
| | EXECUTIVE:
| |
| | /s/ XXX X. XXXXX
| |
| | Xxx X. Xxxxx | |
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| | |
| | | |
| Xxx X. Xxxxx
| | Attachment A |
BMC SOFTWARE, INC.
Executive Employment Agreement
Cash Bonus Description
The Executive will, during the Employment Period, be permitted to participate in the BMC
Short-term Incentive Performance Award Program that may be in effect from time to time. During the
employment period, the Executive will be eligible to receive a target incentive, which currently is
100% of base salary. The actual amount received is not guaranteed and is dependent on the
performance of the Company and the Executive in accordance with the BMC Short-term Incentive
Performance Award Program established for each fiscal year during the employment period.
Each fiscal year, the Executive will receive a detailed description of the BMC Short-term
Incentive Performance Award Program and the targeted measures and objectives for that year.
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