Exhibit 10.1
BMC SOFTWARE, INC.
1994 EMPLOYEE INCENTIVE
PLAN
(Conformed
Version)
I. PURPOSE
The purpose of the BMC SOFTWARE,
INC. 1994 EMPLOYEE INCENTIVE PLAN (the “Plan”) is to
provide a means through which BMC SOFTWARE, INC., a Delaware
corporation (the “Company”), and its subsidiaries may
attract able persons to serve as Directors or to enter the employ
of the Company or its subsidiaries and to provide a means whereby
those individuals upon whom the responsibilities of the successful
administration and management of the Company and its subsidiaries
rest, and whose present and potential contributions to the Company
and its subsidiaries are of importance, can acquire and maintain
stock ownership, thereby strengthening their concern for the
welfare of the Company and its subsidiaries. A further purpose of
the Plan is to provide such individuals with additional incentive
and reward opportunities designed to enhance the profitable growth
of the Company and its subsidiaries. Accordingly, the Plan provides
for granting Incentive Stock Options, options that do not
constitute Incentive Stock Options, Restricted Stock Awards, or any
combination of the foregoing, as is best suited to the
circumstances of the particular employee or Director as provided
herein. The Plan as set forth herein constitutes an amendment and
restatement of the Plan as previously adopted by the Company, and
shall supersede and replace in its entirety such previously adopted
plan.
II. DEFINITIONS
The following definitions shall be
applicable throughout the Plan unless specifically modified by any
paragraph:
(a) “Award”
means, individually or collectively, any Option or Restricted Stock
Award.
(b) “Board” means
the Board of Directors of the Company.
(c) “Code” means
the Internal Revenue Code of 1986, as amended. Reference in the
Plan to any section of the Code shall be deemed to include any
amendments or successor provisions to such section and any
regulations under such section.
(d) “Committee”
means not less than two members of the Board who are selected by
the Board as provided in Paragraph IV(a).
(e) “Common
Stock” means the common stock, par value $.01 per share,
of the Company.
(f) “Company”
means BMC Software, Inc.
(g) “Director”
means an individual who is a member of the Board.
(h) An “employee”
means any person (including a Director) in an employment
relationship with the Company or any parent or subsidiary
corporation (as defined in section 424 of the Code).
(i) “Fair Market
Value” means, as of any specified date, the mean of the
high and low sales prices of the Common Stock (i) reported by
the NASDAQ-National Market System on that date or (ii) if the
Common Stock is listed on a national stock exchange, reported on
the stock exchange composite tape on that date; or, in either case,
if no prices are reported on that date, on the last preceding date
on which such prices of the Common Stock are so reported. If the
Common Stock is traded over the counter at the time a determination
of its fair market value is required to be made hereunder, its fair
market value shall be deemed to be equal to the average between the
reported high and low or closing bid and asked prices of Common
Stock on the most recent date on which Common Stock was publicly
traded. In the event Common Stock is not publicly traded at the
time a determination of its value is required to be made hereunder,
the determination of its fair market value shall be made by the
Board in such manner as it deems appropriate.
(j) “Holder”
means an employee or a Director who has been granted an
Award.
(k) “Incentive Stock
Option” means an incentive stock option within the
meaning of section 422 of the Code.
(l) “1934 Act”
means the Securities Exchange Act of 1934, as amended.
(m) “Option”
means an Award granted under Paragraph VII of the Plan and includes
both Incentive Stock Options to purchase Common Stock and Options
which do not constitute Incentive Stock Options to purchase Common
Stock.
(n) “Option
Agreement” means a written agreement between the Company
and a Holder with respect to an Option.
(o) “Plan” means
the BMC Software, Inc. 1994 Employee Incentive Plan as set forth
herein and, as amended from time to time.
(p) “Restricted Stock
Agreement” means a written agreement between the Company
and a Holder with respect to a Restricted Stock Award.
(q) “Restricted Stock
Award” means an Award granted under Paragraph VIII of the
Plan.
(r) “Rule 16b-3”
means SEC Rule 16b-3 promulgated under the 1934 Act, as such may be
amended from time to time, and any successor rule, regulation or
statute fulfilling the
-2-
same or a similar function.
(s) “Stock Appreciation
Right” shall have the meaning assigned to such term in
Paragraph VII(d) of the Plan.
III. EFFECTIVE DATE AND DURATION
OF THE PLAN
The Plan originally became effective
on July 11, 1994. This amendment and restatement of the Plan
shall be effective as provided in Section I. No further Awards may
be granted under the Plan after August 23, 2015. The Plan
shall remain in effect until all Awards granted under the Plan have
been satisfied or expired.
IV. ADMINISTRATION
(a) Composition of
Committee . The Plan shall be administered by a committee
which shall be (i) appointed by the Board, (ii) solely of
“nonemployee directors,” within the meaning of Rule
16b-3, and (iii) constituted solely by two or more
“outside directors,” within the meaning of section
162(m) of the Code and applicable interpretive authority
thereunder.
(b) Powers. Subject to
the express provisions of the Plan, the Committee shall have
authority, in its discretion, to determine which individuals shall
receive an Award, the time or times when such Award shall be made,
whether an Incentive Stock Option or nonqualified Option shall be
granted, and the number of shares to be subject to each Option or
Restricted Stock Award. In making such determinations the Committee
shall take into account the nature of the services rendered by the
respective individuals , their present and potential
contribution to the Company’s success and such other factors
as the Committee in its discretion shall deem relevant.
(c) Additional Powers.
The Committee shall have such additional powers as are delegated to
it by the other provisions of the Plan. Subject to the express
provisions of the Plan, this shall include the power to construe
the Plan and the respective agreements executed hereunder, to
prescribe rules and regulations relating to the Plan, and to
determine the terms, restrictions and provisions of the agreement
relating to each Award, including such terms, restrictions and
provisions as shall be requisite in the judgment of the Committee
to cause designated Options to qualify as Incentive Stock Options,
and to make all other determinations necessary or advisable for
administering the Plan. The Committee may correct any defect or
supply any omission or reconcile any inconsistency in the Plan or
in any agreement relating to an Award in the manner and to the
extent it shall deem expedient to carry it into effect. The
determinations of the Committee on the matters referred to in this
Paragraph IV shall be conclusive.
(d) Delegation of Authority by
the Committee. Notwithstanding the preceding provisions of
this Paragraph IV or any other provision of the Plan to the
contrary, the Committee may from time to time, in its sole
discretion, delegate to the Chief Executive Officer of the Company
the administration (or interpretation of any provision) of the
Plan, and the right to grant
-3-
Awards under the Plan, insofar as such
administration (and interpretation) and power to grant Awards
relates to any person who is not subject to Section 16 of the
1934 Act (including any successor section to the same or similar
effect). Any such delegation may be effective only so long as the
Chief Executive Officer of the Company is a Director, and the
Committee may revoke such delegation at any time. The Committee may
put any conditions and restrictions on the powers that may be
exercised by the Chief Executive Officer of the Company upon such
delegation as the Committee determines in its sole discretion. In
the event of any conflict in a determination or interpretation
under the Plan as between the Committee and the Chief Executive
Officer of the Company, the determination or interpretation, as
applicable, of the Committee shall be conclusive.
V. GRANT OF OPTIONS AND
RESTRICTED STOCK AWARDS;
SHARES SUBJECT TO THE
PLAN
(a) Stock Grant and Award
Limits. The Committee may from time to time grant Awards to
one or more individuals determined by it to be eligible for
participation in the Plan in accordance with the provisions of
Paragraph VI. Subject to adjustment in the same manner as provided
in Paragraph IX with respect to shares of Common Stock subject to
Options then outstanding, the aggregate number of shares of Common
Stock that may be issued under the Plan shall not exceed 22,000,000
shares. For Awards granted prior to August 21, 2007, shares
shall be deemed to have been issued under the Plan only (i) to
the extent actually issued and delivered pursuant to an Award, or
(ii) to the extent an Award is settled in cash. To the extent
that an Award lapses or the rights of the Holder terminate, any
shares of Common Stock subject to such Award shall again be
available for the grant of an Award. For Awards granted on or after
August 21, 2007, any shares of Common Stock made subject to
Awards of Options or Stock Appreciation Rights shall be counted
against this number as one (1) share of Common Stock for every
one (1) share of Common Stock issued. Any shares of Common
Stock granted as an Award other than Options or Stock Appreciation
rights shall be counted against this number as two (2) shares
of Common Stock for every one (1) share of Common Stock
issued. Shares of Common Stock shall not be deemed to have been
issued pursuant to the Plan with respect to any portion of an Award
that is settled in cash. The shares of Common Stock attributable to
the nonvested, unpaid, unexercised, unconverted or otherwise
unsettled portion of any Award that is forfeited or cancelled or
expires or terminates for any reason without becoming vested, paid,
exercised, converted or otherwise settled in full will again be
available for purposes of the Plan. For purposes of determining the
number of shares of Common Stock issued upon the exercise,
settlement or grant of an Award under this Paragraph, any shares of
Common Stock withheld to satisfy tax withholding obligations shall
be considered issued under the Plan if such payment of tax
withholding obligations with shares of Common Stock is permitted by
the Committee. Notwithstanding any provision in the Plan to the
contrary, the maximum number of shares of Common Stock that may be
subject to Awards granted to any one individual during the term of
the Plan as provided in Paragraph III hereof may not exceed
2,000,000 (subject to adjustment in the same manner as provided in
Paragraph IX hereof with respect to shares of Common Stock subject
to Options then outstanding). The limitation set forth in the
preceding sentence shall be applied in a manner which will permit
compensation generated under the Plan to constitute
“performance-based” compensation for purposes of
section 162(m) of the Code, including,
-4-
without limitation, counting against such
maximum number of shares, to the extent required under section
162(m) of the Code and applicable interpretive authority
thereunder, any shares subject to Options or Stock Appreciation
Rights that are cancelled or repriced.
(b) Stock Offered. The
stock to be offered pursuant to the grant of an Award may be
authorized but unissued Common Stock or Common Stock previously
issued and outstanding and reacquired by the Company.
VI. ELIGIBILITY
Awards may be granted only to
persons who, at the time of grant, are employees or Directors. An
Award may be granted on more than one occasion to the same person,
and, subject to the limitations set forth in the Plan, such Award
may include an Incentive Stock Option, an Option which is not an
Incentive Stock Option, a Restricted Stock Award, or any
combination thereof.
VII. STOCK OPTIONS
(a) Option Period. The
term of each Option shall be as specified by the Committee at the
date of grant.
(b) Limitations on Exercise of
Option. An Option shall be exercisable in whole or in such
installments and at such times as determined by the
Committee.
(c) Special Limitations on
Incentive Stock Options. An Incentive Stock Option may be
granted only to an individual who is an employee at the time the
Option is granted. To the extent that the aggregate Fair Market
Value (determined at the time the respective Incentive Stock Option
is granted) of Common Stock with respect to which Incentive Stock
Options granted after 1986 are exercisable for the first time by an
individual during any calendar year under all incentive stock
option plans of the Company and its parent and subsidiary
corporations exceeds $100,000, such Incentive Stock Options shall
be treated as options which do not constitute Incentive Stock
Options. The Committee shall determine, in accordance with
applicable provisions of the Code, Treasury Regulations and other
administrative pronouncements, which of a Holder’s Incentive
Stock Options will not constitute Incentive Stock Options because
of such limitation and shall notify the Holder of such
determination as soon as practicable after such determination. No
Incentive Stock Option shall be granted to an individual if, at the
time the Option is granted, such individual owns stock possessing
more than 10% of the total combined voting power of all classes of
stock of the Company or of its parent or subsidiary corporation,
within the meaning of section 422(b)(6) of the Code, unless
(i) at the time such Option is granted the option price is at
least 110% of the Fair Market Value of the Common Stock subject to
the Option and (ii) such Option by its terms is not
exercisable after the expiration of five years from the date of
grant. An Incentive Stock Option shall not be transferable
otherwise than by will or the laws of descent and distribution, and
shall be exercisable during the Holders lifetime only by such
Holder or the Holder’s guardian or legal
representative.
-5-
(d) Option Agreement .
Each Option shall be evidenced by an Option Agreement in such form
and containing such provisions not inconsistent with the
p
