ADOPTION AGREEMENT

1.01

PREAMBLE

By the execution of this Adoption Agreement the Plan Sponsor hereby [complete (a) or (b)]

(a)

¨

adopts a new plan as of                      [month, day, year]

(b)

x

amends and restates its existing plan as of January 1, 2008 [month, day, year] which is the Amendment Restatement Date. Except as otherwise provided in Appendix A, all amounts deferred under the Plan prior to the Amendment Restatement Date shall be governed by the terms of the Plan as in effect on the day before the Amendment Restatement Date.

Original Effective Date: April 1, 1994 [month, day, year

Pre-409A Grandfathering:       x   Yes     ¨   No, [If ‘yes’, complete Appendix B, “Summary of Grandfathered Provisions”]

1.02

PLAN

Plan Name: BMC Software, Inc. Executive Deferred Compensation Plan                             

Plan Year: January 1 – December 31                                                                                       

1.03

PLAN SPONSOR

Name:

BMC Software, Inc.

Address:

2101 CityWest Blvd., Houston, TX 77042

Phone # :

713-918-8800

EIN:

74-2126120

Fiscal Yr:

April 1 – March 31

Is stock of the Plan Sponsor, any Employer or any Related Employer publicly traded on an established securities market?

x Yes         ¨ No

1.04

EMPLOYER

The following entities have been authorized by the Plan Sponsor to participate in and have adopted the Plan (insert “Not Applicable” if none have been authorized):

Publicly Traded on Est. Securities Market

Yes

No

    N/A                                                           

¨

¨

¨

¨

¨

¨

¨

¨

¨

¨

¨

¨

1.05

ADMINISTRATOR

The Plan Sponsor has designated the following party or parties to be responsible for the administration of the Plan:

Name :

       The BMC Software, Inc. Employee Benefits Committee                                

Address:

       2101 CityWest Blvd., Houston, TX 77042                                                       

Note:

The Administrator is the person or persons designated by the Plan Sponsor to be responsible for the administration of the Plan. Neither Fidelity Employer Services Company nor any other Fidelity affiliate can be the Administrator.

1.06

KEY EMPLOYEE DETERMINATION DATES

The Employer has designated December 31 the Identification Date for purposes of determining Key Employees.

In the absence of a designation, the Identification Date is December 31.

The Employer has designated April 1 the effective date for purposes of applying the six month delay in distributions to Key Employees.

In the absence of a designation, the effective date is the first day of the fourth month following the Identification Date.

2.01

     PARTICIPATION

    (a)

x

Employees [complete (i), (ii) or (iii)]

(i)

x

Eligible Employees are selected by the Employer.

(ii)

¨

Eligible Employees are those employees of the Employer who satisfy the following criteria:

(iii)

¨

Employees are not eligible to participate.

    (b)

x

Directors [complete (i), (ii) or (iii)]

(i)

¨

All Directors are eligible to participate.

(ii)

¨

Only Directors selected by the Employer are eligible to participate.

(iii)

x

Directors are not eligible to participate.

3.01

COMPENSATION

For purposes of determining Participant contributions under Article 4 and Employer contributions under Article 5, Compensation shall be defined in the following manner [complete (a) or (b) and select (c) and/or (d), if applicable]:

(a)

x

Compensation is defined as:

The Participant’s base salary payable by the Employer

for a Plan Year, including deferrals made by the

Participant under the Plan and any amounts deferred under

a qualified cash or deferred arrangement under Section

401(k) of the Code or a cafeteria plan under Section 125

of the Code.

(b)

¨

Compensation as defined in            [insert name of qualified plan] without regard to the limitation in Section 401(a)(17) of the Code for such Plan Year.

(c)

¨

Director Compensation is defined as:

(d)

¨

Compensation shall, for all Plan purposes, be limited to $             .

(e)

¨

Not Applicable.

3.02

BONUSES

Compensation, as defined in Section 3.01 of the Adoption Agreement, includes the following type of bonuses:

Type

Will be treated as Performance

Based Compensation

Yes

No

GICP

¨

x

Executive Incentive Plan for SVPs

¨

x

PS and SWC Bonus Plans

¨

x

¨

¨

¨

¨

¨

Not Applicable.

4.01

PARTICIPANT CONTRIBUTIONS

If Participant contributions are permitted, complete (a), (b), and (c). Otherwise complete (d).

(a)

Amount of Deferrals

A Participant may elect within the period specified in Section 4.01(b) of the Adoption Agreement to defer the following amounts of remuneration. For each type of remuneration listed, complete “dollar amount” and / or “percentage amount”.

(i) Compensation Other than Bonuses [do not complete if you complete (iii)]

Type of Remuneration

Dollar Amount

% Amount

Increment

Min

Max

Min

Max

(a)

0

50

1%

(b)

(c)

Note: The increment is required to determine the permissible deferral amounts. For example, a minimum of 0% and maximum of 20% with a 5% increment would allow an individual to defer 0%, 5%, 10%, 15% or 20%.

(ii) Bonuses [do not complete if you complete (iii)]

Type of Bonus

Dollar Amount

% Amount

Increment

Min

Max

Min

Max

(a)

0

100

1%

(b)

(c)

(iii) Compensation [do not complete if you completed (i) and (ii)]

Dollar Amount

% Amount

Increment

Min

Max

Min

Max

(iv) Director Compensation

Type of Compensation

Dollar Amount

% Amount

Increment

Min

Max

Min

Max

Annual Retainer

Meeting Fees

Other:

Other:

(b)

Election Period

(i)

Performance Based Compensation

A special election period

¨     Does             x     Does Not

apply to each eligible type of performance based compensation referenced in Section 3.02 of the Adoption Agreement.

The special election period, if applicable, will be determined by the Employer.

(ii)

Newly Eligible Participants

An employee who is classified or designated as an Eligible Employee during a Plan Year

x     May             ¨     May Not

elect to defer Compensation earned during the remainder of the Plan Year by completing a deferral agreement within the 30 day period beginning on the date he is eligible to participate in the Plan.

(c)

Revocation of Deferral Agreement

A Participant’s deferral agreement

x        Will

¨         Will Not

be cancelled for the remainder of any Plan Year during which he receives a hardship distribution of elective deferrals from a qualified cash or deferred arrangement maintained by the Employer. If cancellation occurs, the Participant may resume participation in accordance with Article 4 of the Plan.

(d)

No Participant Contributions

¨         Participant contributions are not permitted under the Plan.

5.01

EMPLOYER CONTRIBUTIONS

If Employer contributions are permitted, complete (a) and/or (b). Otherwise complete (c).

(a)

Matching Contributions

(i)

Amount

For each Plan Year, the Employer shall make a Matching Contribution on behalf of each Participant who defers Compensation for the Plan Year and satisfies the requirements of Section 5.01(a)(ii) of the Adoption Agreement equal to [complete the ones that are applicable]:

(A)

¨

           [insert percentage] of the Compensation the Participant has elected to defer for the Plan Year

(B)

x

An amount determined by the Employer in its sole discretion

(C)

¨

Matching Contributions for each Participant shall be limited to $            and/or            % of Compensation.

(D)

¨

Other:

(E)

¨

Not Applicable [Proceed to Section 5.01(b)]

(ii

)

Eligibility for Matching Contribution

A Participant who defers Compensation for the Plan Year shall receive an allocation of Matching Contributions determined in accordance with Section 5.01(a)(i) provided he satisfies the following requirements [complete the ones that are applicable]:

(A

)

¨

Describe requirements:

(B

)

x

Is selected by the Employer in its sole discretion to receive an allocation of Matching Contributions

(C

)

¨

No requirements

(iii

)

Time of Allocation

Matching Contributions, if made, shall be treated as allocated [select one]:

(A

)

¨

As of the last day of the Plan Year

(B

)

x

At such times as the Employer shall determine in it sole discretion

(C

)

¨

At the time the Compensation on account of which the Matching Contribution is being made would otherwise have been paid to the Participant

(D

)

¨

Other:

(b)

Other Contributions

(i

)

Amount

The Employer shall make a contribution on behalf of each Participant who satisfies the requirements of Section 5.01(b)(ii) equal to [complete the ones that are applicable]:

(A

)

¨

An amount equal to            [insert number] % of the Participant’s Compensation

(B

)

x

An amount determined by the Employer in its sole discretion

(C

)

¨

Contributions for each Participant shall be limited to $           

(D

)

¨

Other:

(E

)

¨

Not Applicable [Proceed to Section 6.01]

(ii

)

Eligibility for Other Contributions

A Participant shall receive an allocation of other Employer contributions determined in accordance with Section 5.01(b)(i) for the Plan Year if he satisfies the following requirements [complete the one that is applicable]:

(A

)

¨

Describe requirements:

(B

)

x

Is selected by the Employer in its sole discretion to receive an allocation of other Employer contributions

(C

)

¨

No requirements

(iii

)

Time of Allocation

Employer contributions, if made, shall be treated as allocated [select one]:

(A

)

¨

As of the last day of the Plan Year

(B

)

x

At such time or times as the Employer shall determine in its sole discretion

(C

)

¨

Other:

(c)

No Employer Contributions

¨

Employer contributions are not permitted under the Plan.

6.01

DISTRIBUTIONS

The timing and form of payment of distributions made from the Participant’s vested Account shall be made in accordance with the elections made in this Section 6.01 of the Adoption Agreement except when Section 9.6 of the Plan requires a six month delay for certain distributions to Key Employees of publicly traded companies.

(a)

Timing of Distributions

(i)

All distributions shall commence in accordance with the following [choose one]:

(A)

¨

As soon as administratively feasible following the distribution event

(B)

x

Monthly on specified day 15th [insert day]

(C)

¨

Annually on specified month and day            [insert month and day]

(D)

¨

Calendar quarter on specified month and day [            month of quarter (insert 1,2 or 3);          day (insert day)]

(ii)

The timing of distributions as determined in Section 6.01(a)(i) shall be modified by the adoption of:

(A)

x

Event Delay – Distribution events other than those based on Specified Date or Specified Age will be treated as not having occurred for six months [insert number of months].

(B)

¨

Hold Until Next Year – Distribution events other than those based on Specified Date or Specified Age will be treated as not having occurred for twelve months from the date of the event if payment pursuant to Section 6.01(a)(i) will thereby occur in the next calendar year or on the first payment date in the next calendar year in all other cases.

(C)

¨

Immediate Processing – The timing method selected by the Plan Sponsor under Section 6.01(a)(i) shall be overridden for the following distribution events [insert events]:

(D)

¨

Not applicable.

(b)

Distribution Events

Participants may elect the following payment events and the associated form or forms of payment. If multiple events are selected, the earliest to occur will trigger payment. For installments, insert the range of available periods (e.g., 5-15) or insert the periods available (e.g., 5,7,9).

Lump

Sum

Installments

(i)

x

Specified Date

    X    

5, 10, 15  years

(ii)

x

Specified Age