Exhibit 10.27
EXECUTIVE EMPLOYMENT
AGREEMENT
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 John McMahon (the
“Executive”). The Employer and the Executive are each a
“party” and are together “parties” to this
Agreement.
BACKGROUND
The Employer and the Executive
previously entered into that certain employment agreement dated
May 27, 2008 (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 Section 409A of the Internal Revenue
Code and to make certain other changes. The Executive acknowledges
that a portion of his employment duties will be undertaken in the
state of Texas at the corporate headquarters of the Employer. In
addition to the fact that Executive will often be physically
present in the state of Texas while undertaking his employment
duties, all or a substantial portion of his employment undertakings
outside the state of Texas relate to the business of the corporate
headquarters located in Houston, Texas. Executive acknowledges the
substantial nexus between his employment and the state of Texas.
Except as set forth in this Agreement, Employer and Executive
intend this Agreement to supersede all prior offer letters, Change
of Control Agreement, the Prior Employment Agreement, and/or
Confidentiality and Intellectual Property Assignment Agreement for
BMC Software Employees between Employer and Executive. To the
extent any compensation or obligations of Employer under any
previous offer letter, Change of Control Agreement, the Prior
Employment Agreement, and/or Confidentiality and Intellectual
Property Assignment Agreement for BMC Software Employees between
Employer and Executive are intended to survive, they have been
incorporated into this Agreement.
AGREEMENT
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) confidential and proprietary
information, whether in written, oral or electronic form,
concerning the business, strategies, and affairs of the Employer,
product specifications, data, know-how, formulae, compositions,
processes, designs, sketches, photographs, graphs, drawings,
samples, inventions and ideas, past, current, and
planned
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research and development, current
and planned manufacturing or distribution methods and processes,
customer lists, current and anticipated customer requirements,
price lists, market studies, business plans, computer software and
programs (including object code and source code), computer software
and database technologies, systems, structures, and architectures
(and related formulae, compositions, processes, improvements,
devices, know-how, inventions, discoveries, concepts, ideas,
designs, methods and information), trade secrets, and any other
information, however documented;
(b) information which has value in
the Employer’s business and which the Employer takes
reasonable steps to keep confidential; this consists of information
concerning the business and affairs of the Employer, such as
historical financial statements, financial projections and budgets,
historical and projected sales, capital spending budgets and plans,
marketing and sales plans, business plans, the names and
backgrounds of key personnel, personnel training and techniques and
materials, however documented; and
(c) notes, analysis, compilations,
studies, summaries, and other material prepared by or for the
Employer containing or based, in whole or in part, on any
information included in the foregoing.
“Disability” as defined in Section 6.2.
“Effective
Date” is the date
stated in the first paragraph of the Agreement.
“Employee
Invention” shall
mean any idea, invention, technique, modification, process, method,
discovery, concept, know-how, derivative, enhancement or
improvement (whether patentable or not), any industrial design
(whether registerable or not), any mask work, however fixed or
encoded, that is suitable to be fixed, embedded or programmed in a
semiconductor product (whether recordable or not), and any source
or object code, firmware, computer program, command structure,
documentation, algorithm or other work of authorship (whether or
not copyright protection may be obtained for it) created,
conceived, developed or worked on, in whole or in part, by the
Executive, either solely or in conjunction with others, during the
Employment Period, or a period that includes a portion of the
Employment Period, that relates in any reasonable way to, or is
useful in any manner in, the business then being conducted or
proposed to be conducted by the Employer, and any such item created
by the Executive, either solely or in conjunction with others,
following termination of the Executive’s employment with the
Employer, that is based upon or uses Confidential
Information.
“ Employer Group”
shall mean the Employer and any other corporation or trade or
business required to be aggregated with the Employer which
constitutes a single employer under Code Section 414(b) or
Code Section 414(c) with the Employer, except that in applying
Code Section 1563(a)(1), (2), and (3), the language “at
least 50 percent” is used instead of “at least 80
percent”.
“Employment
Period” is the term
of the Executive’s employment under this
Agreement.
“Fiscal
Year” shall mean
the Employer’s fiscal year, which shall end on March 31
of each calendar year, or as changed from time to time.
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“Good
Reason” as defined
in Section 6.3(b).
“Person”
is any individual, corporation
(including any non-profit corporation), general or limited
partnership, limited liability company, joint venture, estate,
trust, association, organization, or governmental body.
“Proprietary
Items” as defined
in Section 7.2(a)(iv).
“ Separation from
Service” shall mean the Executive’s termination of
employment with the Employer Group for any reason which constitutes
a “separation from service” under Code
Section 409A. Notwithstanding the foregoing, the
Executive’s employment relationship with the Employer Group
is considered to remain intact while the individual is on military
leave, sick leave or other bona fide leave of absence if there is a
reasonable expectation that the Executive will return to perform
services for the Employer Group and the period of such leave does
not exceed six (6) months, or if longer, so long as the
Executive retains a right to reemployment with the Employer under
applicable law or contract. Solely for purposes of determining
whether a Separation from Service has occurred, the Employer will
determine whether the Executive has terminated employment with the
Employer Group based on whether it is reasonably anticipated by the
Employer and the Executive that the Executive will permanently
cease providing services to the Employer Group, whether as an
employee or independent contractor, or that the services to be
performed by the Executive, whether as an employee or independent
contractor, will permanently decrease to no more than 20% of the
average level of bona fide services performed, whether as an
employee or independent contractor, over the immediately preceding
36-month period or such shorter period during which the Executive
was performing services for the Employer Group. If a leave of
absence occurs during such 36-month or shorter period which is not
considered a Separation from Service, unpaid leaves of absence
shall be disregarded and the level of services provided during any
paid leave of absence shall be presumed to be the level of services
required to receive the compensation paid with respect to such
leave of absence.
“Trade
Secrets” shall mean
the whole or any part of any scientific or technical information,
design, process, procedure, formula, or improvement that has value
and that the owner has taken measures to prevent from becoming
available to persons other than those selected by the owner to have
access for limited purposes.
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2.
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EMPLOYMENT TERMS AND
DUTIES
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The Employer hereby employs the
Executive, and the Executive hereby accepts employment by the
Employer, upon the terms and conditions set forth in this
Agreement.
Subject to the provisions of
Section 6, the term of the Executive’s employment under
this Agreement will commence upon the Effective Date and shall
continue in effect through the third anniversary of the Effective
Date (the “Employment Period”); provided, however,
that, subject to the provisions of Section 6, commencing on
the day following the Effective Date and on each day thereafter,
the Employment Period shall be automatically extended for one
additional day
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unless the Employer shall give written notice to
Executive that the Employment Period shall cease to be so extended,
in which event the Employment Period shall terminate on the third
anniversary of the date such notice is given.
The Executive will have such duties
as are assigned or delegated to the Executive by the Board of
Directors, and will serve as the Employer’s Senior Vice
President, Worldwide Sales and Services. The Executive will devote
his entire business time, attention, skill, and energy exclusively
to the business of the Employer, will use his best efforts to
promote the success of the Employer’s business, and will
cooperate fully with the Board of Directors in the advancement of
the best interests of the Employer. The Executive’s
employment will be subject to the policies maintained and
established by the Employer, from time to time. Nothing in this
Section 2.3, however, will prevent the Executive from engaging
in additional activities in connection with passive personal
investments and community affairs that are not inconsistent with
the Executive’s duties under this Agreement. Additionally,
nothing in this Section 2.3 will prevent the Executive from
serving on the board of directors of other companies or
organizations, or engaging in other activities, so long as such
participation does not conflict with the interests or business of
Employer or require such involvement as to interfere with the
performance of the Executive’s duties hereunder and has been
expressly approved by the Chief Executive Officer of Employer. If
the Executive is elected as a director of the Employer or as a
director or officer of any of its affiliates, the Executive will
fulfill his duties as such director or officer without additional
compensation. The Executive acknowledges and agrees that he owes a
fiduciary duty of loyalty, fidelity and allegiance to act at all
times in the best interests of the Employer.
During the Employment Period, the
Employer shall pay Executive an annual base salary in the amount of
$400,000, less applicable taxes and withholdings, payable in
accordance with the Employer’s standard payroll practices and
procedure. (The annual base salary specified in this
Section 3.1, together with any changes to such compensation
that the Employer may make from time to time, are referred to in
this Agreement as the “Base Salary.”) Executive’s
Base Salary shall be reviewed at least annually and, if deemed
appropriate in the sole discretion of the Compensation Committee of
the Board of Directors, shall be increased from time to
time.
The Executive will, during the
Employment Period, be permitted to participate in such retirement
program, profit sharing, life insurance, hospitalization, major
medical, and other employee benefit plans of the Employer that may
be in effect from time to time, to the extent the Executive is
eligible under the terms of those plans (collectively, the
“Benefits”).
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Executive will be eligible for a
cash bonus as described in Attachment A incorporated herein by
reference and such other bonus programs as may be authorized by the
Compensation Committee and Directors of the Employer.
The Executive will be entitled to
receive awards granted by the Compensation Committee of the Board
of Directors pursuant to any equity program or long-term incentive
plan that may be maintained by the Employer from time to time.
Executive’s rights respecting any awards granted to the
Executive prior to the Effective Date pursuant to any such equity
program or long-term incentive plan maintained by the Employer
shall continue under the terms of the awards and the applicable
plans or programs under which the awards were granted.
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4.
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FACILITIES AND
EXPENSES
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During the Employment Period, the
Employer will furnish the Executive office space, equipment,
supplies, and such other facilities and personnel as the Employer
deems reasonably necessary or appropriate for the performance of
the Executive’s duties under this Agreement. Executive shall
reside and be based in Massachusetts and shall not be required to
relocate.
The Employer will pay on behalf of
the Executive (or reimburse the Executive in a timely manner for)
reasonable expenses incurred by the Executive at the request of, or
on behalf of, the Employer in the performance of the
Executive’s duties pursuant to this Agreement, and in
accordance with the Employer’s employment policies, including
reasonable expenses incurred by the Executive in attending business
meetings, in appropriate business entertainment activities,
traveling to and from the Company’s headquarters in Houston,
Texas on business and for promotional expenses. The Executive must
file expense reports with respect to such expenses in accordance
with the Employer’s policies then in effect.
All in-kind benefits provided and
expenses eligible for reimbursement under this Section 4 must
be provided by the Employer or incurred by the Executive during the
term of this Agreement. All reimbursements shall be paid as soon as
administratively practicable, but in no event shall any
reimbursement be paid after the last day of the taxable year
following the taxable year in which the expense was incurred. The
amount of in-kind benefits provided or reimbursable expenses
incurred in one taxable year shall not affect the in-kind benefits
to be provided or the expenses eligible for reimbursement in any
other taxable year. Such right to reimbursement or in-kind benefits
is not subject to liquidation or exchange for another
benefit.
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5.
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VACATIONS AND
HOLIDAYS
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The Executive will be entitled to
paid vacation during the Employment Period in accordance with the
vacation policies of the Employer in effect for its employees from
time to time. The Executive will also be entitled to the paid
holidays and other paid leave set forth in the Employer’s
policies.
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6.1
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EVENTS OF TERMINATION
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The Employment Period, the
Executive’s Base Salary and any and all other rights of the
Executive under this Agreement or otherwise as an employee of the
Employer will terminate (except as otherwise provided in this
Section 6):
(a) upon the death of the
Executive;
(b) upon the Disability of the
Executive immediately upon notice from either party to the
other;
(c) upon termination by the Employer
for Cause;
(d) upon the voluntary retirement
from or voluntary resignation of employment by the Executive
without Good Reason;
(e) upon termination by the Employer
for any reason other than those set forth in Section 6.1(a)
through 6.1(d) above; or
(f) upon voluntary resignation of
employment by the Executive for Good Reason.
Upon termination of the Employment
Period, as provided above or otherwise, Executive’s rights
respecting benefits, restricted stock, stock options, other equity
incentives, and cash bonus, will be determined under the applicable
plan or program providing the same.
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6.2
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DEFINITION OF
DISABILITY
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For purposes hereof, the term
“Disability” shall mean an incapacity by accident,
illness or other circumstance which renders the Executive mentally
or physically incapable of performing the duties and services
required of the Executive hereunder on a full-time basis for a
period of at least 180 consecutive days.
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6.3
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DEFINITION OF “CAUSE”
AND “GOOD REASON”
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(a) Definition of
“Cause” . For all purposes under this Agreement,
“Cause” shall mean the occurrence of one or more of the
following events:
(i) the Executive’s continued
and material failure to perform his obligations under this
Agreement;
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(ii) the Executive’s material
failure to adhere to any Employer policy or code of
conduct;
(iii) the appropriation (or
attempted appropriation) of a material business opportunity of the
Employer, including attempting to secure or securing any personal
profit in connection with any transaction entered into on behalf of
the Employer;
(iv) the Executive’s engaging
in conduct that is materially injurious to the Employer;
(v) the misappropriation (or
attempted misappropriation) of any of the Employer’s funds or
property;
(vi) the conviction of or the
entering of a guilty plea or plea of no contest with respect to, a
felony, the equivalent thereof, or any other crime with respect to
which imprisonment is a punishment; or
(vii) the conviction of the
Executive by a court of competent jurisdiction of, or
Executive’s guilty plea or plea of no contest with respect
to, a crime involving moral turpitude.
The determination of whether the
Executive’s employment is terminated for Cause shall be made
solely by the Employer, which shall act in good faith in making
such determination.
(b) Definition of “Good
Reason” . For all purposes under this Agreement,
“Good Reason” means the occurrence of one or more of
the following events arising without the express written consent of
the Executive, but only if the Executive notifies the Employer in
writing of the event within sixty (60) days following the
occurrence of the event, the event remains uncured after the
expiration of thirty (30) days from receipt of such notice,
and the Executive resigns effective no later than thirty
(30) days following the Employer’s failure to cure the
event:
(i) the occurrence, prior to a
Change of Control or on or after the date which is twelve
(12) months after a Change of Control occurs, of any one or
more of the following events that results in a material negative
change in the Executive’s employment relationship with the
Employer:
(A) a reduction in the
Executive’s Base Salary or target bonus opportunity from that
provided to him immediately on the Effective Date of this Agreement
or as the same may be increased from time to time; or
(B) a diminution in employee
benefits (including but not limited to medical, dental, life
insurance and long-term disability plans) and perquisites
applicable to the Executive from those substantially similar to the
employee benefits and perquisites provided by the
Employer
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(including subsidiaries) to
executives with comparable duties, as such benefits may be modified
from time to time; or
(ii) the occurrence, within twelve
(12) months after the date upon which a Change of Control
occurs, of any one or more of the following events:
(A) a material diminution in the
Executive’s Base Salary;
(B) a material diminution in the
Executive’s authority, duties, or
responsibilities;
(C) a material diminution in the
authority, duties, or responsibilities of the supervisor to whom
the Executive is required to report, including a requirement that
the Executive report to a corporate officer or employee instead of
reporting directly to the board of directors of the
Employer;
(D) a material diminution in the
budget over which the Executive retains authority;
(E) the Employer or a subsidiary
thereof requiring the Executive to be permanently based anywhere
other than within fifty (50) miles of the Executive’s
job location immediately prior to the reassignment;
(F) any other action that
constitutes a material breach by the Employer of the Agreement;
or
(G) the occurrence of one or more of
the following events that results in a material negative change in
the Executive’s employment relationship with the
Employer:
(1) a reduction in the
Executive’s target bonus opportunity as in effect immediately
prior to the Change of Control or as the same may be increased from
time to time;
(2) a change in the eligibility
requirements or performance criteria under any bonus, incentive or
compensation plan, program or arrangement under which the Executive
is covered immediately prior to the Change of Control which
adversely affects the Executive;
(3) without replacement by a plan
providing benefits to Executive equal to or greater than those
discontinued, the failure by the Employer or a subsidiary thereof
to continue in effect, within its maximum stated term, any pension,
bonus, incentive,
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stock ownership, purchase, option,
life insurance, health, accident, disability, or any other employee
benefit plan, program or arrangement in which Executive is
participating at the time of the Change of Control, or the taking
of any action by the Employer or a subsidiary thereof that would
adversely affect Executive’s participation or materially
reduce Executive’s benefits under any of such plans;
or
(4) the taking of any action by the
Employer or a subsidiary thereof that would materially adversely
affect the physical conditions existing at the time of the Change
of Control in or under which Executive performs his employment
duties.
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 Employer within
forty-five (45) days after Executive’s termination of
employment, the Executive shall be entitled to:
(a) a lump sum payment equal to one
(1) times his then current Base Salary;
(b) a lump sum payment equal to one
(1) times his then current cash bonus target amount;
and
(c) (i) all Executive’s
outstanding stock options to acquire shares of the common stock of
Employer that were received upon conversion in connection with the
Merger (as defined in the Merger Agreement) shall become
immediately vested and fully exercisable, and (ii) any
forfeiture restrictions on