Exhibit 10.4
BMC SOFTWARE, INC.
2000 EMPLOYEE STOCK INCENTIVE
PLAN
(Conformed
Version)
I. PURPOSE
The purpose of the BMC SOFTWARE,
INC. 2000 EMPLOYEE STOCK 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 consultants or advisors 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 welfare
of 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 Options and Restricted Stock Awards,
or any combination of the foregoing, as is best suited to the
circumstances of the particular employee, consultant, or advisor as
provided herein.
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 a committee of the
Board that is 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, or any security into which such Common Stock
may be changed by reason of any transaction or event of the type
described in Paragraph IX.
(f)
“Company” means BMC Software, Inc., a
Delaware corporation.
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(g)
“Consultant” means any person who is not
an employee and who is providing advisory or consulting services to
the Company or any parent or subsidiary corporation (as defined in
section 424 of the Code).
(h)
“Director” means an individual elected to
the Board by the stockholders of the Company or by the Board under
applicable corporate law who is serving on the Board on the date
the Plan is adopted by the Board or is elected to the Board after
such date.
(i) 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).
(j) “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 National Market System of NASDAQ 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 Committee in such manner as it deems
appropriate.
(k)
“Holder” means an employee, Consultant,
or Director who has been granted an Award.
(l) “1934
Act” means the Securities Exchange Act of 1934, as
amended.
(m)
“Option” means an Award granted under
Paragraph VII of the Plan.
(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. 2000 Employee Stock Incentive Plan, 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 same or a
similar function.
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(s) “Stock Appreciation
Right” shall have the meaning assigned to such term
in Paragraph VII(c) of the Plan.
III. EFFECTIVE DATE AND DURATION
OF THE PLAN
The Plan shall become effective upon
the date of its adoption by the Board. No further Awards may be
granted under the Plan after ten years from the date the Plan is
adopted by the Board. The Plan shall remain in effect until all
Options granted under the Plan have been satisfied or expired, and
all Restricted Stock Awards granted under the Plan have vested or
been forfeited.
IV. ADMINISTRATION
(a) Composition of
Committee . The Plan shall be administered by a committee
of, and appointed by, the Board that shall be comprised solely of
two or more non-employee directors (within the meaning of
“Non-Employee Director” as defined in Rule
16b-3).
(b) Powers . Subject
to the express provisions of the Plan, the Committee shall have
authority, in its discretion, to determine which employees,
Consultants, or Directors shall receive an Award, the time or times
when such Award shall be made, 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 employees, Consultants, or
Directors, 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, to determine
the terms, restrictions and provisions of the agreement relating to
each Award, 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 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
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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. SHARES SUBJECT TO THE
PLAN; GRANT OF OPTIONS;
GRANT OF RESTRICTED STOCK
AWARDS
(a) Shares Subject to the
Plan . 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; provided, however, that the maximum number of shares shall
be reduced effective August 21, 2007, by the number of shares
remaining subject to the Plan immediately prior to such date that
are not then subject to outstanding grants. 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 its Holder terminate, any shares of Common
Stock subject to such Award shall again be available for the grant
of an Award under the Plan.
(b) Grant of Options .
The Committee may from time to time grant Options to one or more
employees, Consultants, or Directors determined by it to be
eligible for participation in the Plan in accordance with the terms
of the Plan.
(c) Grant of Restricted Stock
Awards . The Committee may from time to time grant
Restricted Stock Awards to one or more employees, Consultants, or
Directors determined by it to be eligible for participation in the
Plan in accordance with the terms of the Plan.
(d) Stock Offered .
Subject to the limitations set forth in Paragraph V(a), 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. Any of such shares which
remain unissued and which are not subject to outstanding Awards at
the termination of the Plan shall cease to be subject to the Plan
but, until termination of the Plan, the Company shall at all times
make available a sufficient number of shares to meet the
requirements of the Plan.
VI. ELIGIBILITY
Awards may be granted only to
persons who, at the time of grant, are employees, Consultants, or
Directors; provided, however, that Awards may not be granted to any
Director who is not an employee. 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
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.
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(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) Option Agreement .
Each Option shall be evidenced by an Option Agreement in such form
and containing such provisions not inconsistent with the provisions
of the Plan as the Committee from time to time shall approve. Each
Option Agreement shall specify the effect of termination of
(i) employment or (ii) the consulting or advisory
relationship, as applicable, on the exercisability of the Option.
An Option Agreement may provide for the payment of the option
price, in whole or in part, by the delivery of a number of shares
of Common Stock (plus cash if necessary) having a Fair Market Value
equal to such option price. Moreover, an Option Agreement may
provide for a “cashless exercise” of the Option by
establishing
