EXHIBIT 10.7(e)
FORM OF AMENDMENT NO. 4
TO
EXECUTIVE EMPLOYMENT AGREEMENT
This Amendment No. 4 to the Executive Employment Agreement dated as of
__________ (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. 4 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. 4 (a) shall supersede any prior agreement between
the Employer and the Executive relating to the subject matter of this Amendment
No. 4 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. 4, 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. 4 as of the day and year first above written.
EXECUTIVE EMPLOYER
BMC SOFTWARE, INC.
_______________________________ By: __________________________
2