Executive Employment Agreement (2008)Full Document 

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This Executive Employment Agreement (this “Agreement”) is made as of November 19, 2008 (the “Effective Date”), by and between BMC Software, Inc., a Delaware corporation (the “Employer”), and James W. Grant, Jr. (the “Executive”). The Employer and the Executive are each a “party” and are together “parties” to this Agreement.


The Employer and the Executive previously entered into that certain employment agreement dated February 1, 2007 (the “Prior Employment Agreement”). The Employer and the Executive now desire to amend and restate the Prior Employment Agreement to reflect necessary changes for the Agreement to comply with Code Section 409A and to make certain other changes.


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.

“Affiliate” means a person or entity that directly or indirectly controls, is controlled by, or is under common control with, the Employer.

“Agreement” refers to this Executive Employment Agreement, including all Exhibits attached hereto, as amended from time to time.

“Base Salary” as defined in Section 3.1.

“Benefits” as defined in Section 3.2.

“Board of Directors” refers to the board of directors of the Employer.

“Cause” as defined in Section 6.3(a).

“Change of Control” means the occurrence of one or more of the following events:

(a) the acquisition, directly or indirectly, by any person or related group of persons (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of beneficial ownership (within the meaning of Rule 13d-3 of the Exchange Act) of securities possessing at least fifty percent (50%) of the total combined voting power of the Employer’s outstanding securities;

(b) a change in the composition of the Board of Directors such that a majority of the Board members ceases by reason of one or more contested elections for Board membership to be comprised of individuals who either (i) are Board members as of the Effective Date (the “Incumbent Directors”) or (ii) after the Effective Date, are elected or nominated for election as Board members by at least a majority of the Incumbent Directors who are still in office at the time such election or nomination is approved by the Board (such individuals will also be considered “Incumbent Directors” upon election to the Board), but excluding for purposes of clauses (i) and (ii) any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest (within the meaning of Rule 14a-11 of the Exchange Act) with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board of Directors;

(c) a merger, consolidation, or similar corporate transaction in which the Employer’s shareholders immediately prior to the transaction do not own more than sixty percent (60%) of the voting stock of the surviving corporation in the transaction;

(d) shareholder approval of the Employer’s liquidation, dissolution, or sale of substantially all of its assets; or

(e) if Executive’s primary employment duties are with a subsidiary, division or business unit of the Employer, the sale, merger, contribution, transfer or any other transaction in conjunction with which the Employer’s ownership interest in the subsidiary, division or business unit decreases below a majority interest.

“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,

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