EX-101 INSTANCE DOCUMENT
EX-10.34 4 c26121exv10w34.htm EXHIBIT 10.34 Exhibit 10.34
Exhibit 10.34
Amendment to Executive Employment Agreement
This Amendment (the Amendment) to Executive Employment Agreement is entered into and is effective as of November 30, 2011, by and between William Miller, 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 Executives termination of employment, the Executive shall be entitled to:
(i) a lump sum payment equal to one (1) times his then current Base Salary;
(ii) a lump sum payment equal to one (1) 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 Executives 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 Executives Separation from Service on or after the date the Executives 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 Companys 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 Executives position is eliminated or the Executives 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 Executives 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 one (1) times his then current Base Salary;
(ii) a lump sum payment equal to one (1) 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 Executives 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 Executives 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 Executives individual basic life insurance policy provided by the Employers group life insurance carrier upon conversion of the Executives coverage under the Employers 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 Executives Separation from Service) to convert his life insurance coverage provided under the Employers 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 Executives Separation from Service on or after the date the Executives 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 Companys 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 | ||||
/s/ WILLIAM MILLER | ||||
William Miller | ||||
BMC SOFTWARE, INC. | ||||
By: | /s/ HOLLIE S. CASTRO | |||
Name: | Hollie S. Castro | |||
Title: | Senior Vice President, Administration | |||
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