UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): November 1, 2004:
BMC SOFTWARE, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 001-16393 74-2126120
(State of Incorporation) (Commission File Number) (I.R.S. Employer
Identification Number)
2101 CITYWEST BLVD.
HOUSTON, TEXAS 77042-2827
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (713) 918-8800
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act (17 CFR 204.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act (17 CFR 240.13e-4(c))
ITEM 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
On November 2, 2004, BMC Software, Inc. (the "Company") issued a press
release announcing the election of Cosmo Santullo as its Senior Vice President -
Worldwide Sales. In connection with the hiring of Mr. Santullo, the Company and
Mr. Santullo entered into an Executive Employment Agreement effective November
1, 2004 (the "Agreement").
The Agreement is substantially similar to existing agreements with the
Company's CEO and other senior executive officers and provides for an annual
base salary for Mr. Santullo of $425,000. In addition, he is entitled to a
target annual cash bonus equal to a 150% of his annual base salary. The actual
amount of any such cash bonus is based on performance. The Agreement also
provides Mr. Santullo with a one-time sign-on bonus of $50,000 and an option to
purchase 250,000 shares of common stock of the Company. The Agreement provides
that in the case of a termination of employment by the Company without cause, as
defined in the Agreement, or by Mr. Santullo for good reason, as defined in the
Agreement, Mr. Santullo would be entitled to a payment equal to two years of his
then current base salary and a payment equal to two times his then current cash
bonus target amount. The Agreement also provides that in the event of a
termination of employment without cause or for good reason within 12 months of a
change of control of the Company, Mr. Santullo would be entitled to a payment
equal to two years of his then current base salary and a payment equal to two
times his then current cash bonus target amount, would vest fully in outstanding
options and would continue to receive medical and life insurance benefits at no
cost for eighteen months. In consideration of the benefits bestowed under the
Agreement, it restricts competitive activities for two years after termination,
prohibits disclosure of Company confidential information and prohibits
solicitation of Company employees. A copy of the Agreement is filed herewith as
an exhibit.
The Company also announced on November 2, 2004 that Darroll Buytenhuys
would assume the position of Senior Vice President - Worldwide Marketing &
Corporate Strategy effective November 1, 2004. In connection with assuming this
position, the Company and Mr. Buytenhuys entered into an amendment to Mr.
Buytenhuys' existing Executive Employment Agreement effective November 1, 2004
(the "Amendment"). The Amendment provides for the new title and continuation of
Mr. Buytenhuys' annual base salary of $425,000 and target annual bonus of 150%
of base salary. The Amendment also acknowledges that an event which constitutes
good reason, as defined in his employment agreement, has occurred as of November
1, 2004 and that the period in which Mr. Buytenhuys may terminate his employment
for good reason under his agreement has been extended until December 31, 2005. A
copy of the Amendment is filed herewith as an exhibit.
From time to time, the Company awards stock options and restricted shares
to its executive officers. Such awards are made pursuant to form agreements
which are filed herewith as exhibits.
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9.01 FINANCIAL STATEMENTS AND EXHIBITS
Exhibit No. Exhibit
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10.7(g) Amendment No. 5 to Executive Employment Agreement between BMC Software, Inc. and Darroll Buytenhuys.
10.13 Executive Employment Agreement between BMC Software, Inc. and Cosmo Santullo
10.14 Form of Stock Option Agreement employed under BMC Software, Inc. 1994 Employee Incentive Plan utilized for senior
executive officers.
10.15 Form of Restricted Stock Agreement employed under BMC Software, Inc. 1994 Employee Incentive Plan utilized for
senior executive officers.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: November 2, 2004
BMC SOFTWARE, INC.
By: /s/ ROBERT H. WHILDEN, JR.
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Robert H. Whilden, Jr.
Senior Vice President, General
Counsel and Secretary
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EXHIBIT INDEX
Exhibit No. Exhibit
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10.7(g) Amendment No. 5 to Executive Employment Agreement between BMC Software, Inc. and Darroll Buytenhuys.
10.13 Executive Employment Agreement between BMC Software, Inc. and Cosmo Santullo
10.14 Form of Stock Option Agreement employed under BMC Software, Inc. 1994 Employee Incentive Plan utilized for senior
executive officers.
10.15 Form of Restricted Stock Agreement employed under BMC Software, Inc. 1994 Employee Incentive Plan utilized for
senior executive officers.
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