EX-10.28






FORM OF PERFORMANCE-BASED RESTRICTED STOCK UNIT AWARD AGREEMENT




BMC Software, Inc., a Delaware corporation (the “Company”), hereby grants to the Recipient this
Performance-Based Restricted Stock Unit Award (this “Award”) effective as of the Grant Date
pursuant to the terms of this Performance-Based Restricted Stock Unit Award Agreement (this
“Agreement”). The Award is subject to all of the terms and conditions of this Agreement and the
BMC Software, Inc. 2007 Incentive Plan (the “Plan”), a copy of which is available on the BMC
intranet under Human Resources/Employee Portals. Unless otherwise specified, capitalized terms
used in this Agreement shall have the meanings specified in the Plan. The terms and conditions of
the Plan are incorporated herein by this reference and govern except to the extent that this
Agreement provides otherwise.



RECIPIENT NAME:



GRANT DATE:




	 	 	 	RESTRICTED STOCK UNITS: THE RIGHT TO RECEIVE 000 SHARES OF THE COMPANY’S COMMON STOCK
(THE “SHARES”) SUBJECT TO AND FOLLOWING LAPSING OF THE FORFEITURE RESTRICTIONS SET
FORTH IN THIS AGREEMENT. THE FORFEITURE RESTRICTIONS ARE SET FORTH IN THE TERMS AND
CONDITIONS ATTACHED HERETO AS ANNEX A AND SUCH ANNEX IS INCORPORATED HEREIN BY THIS
REFERENCE.





By accepting this Performance-Based Restricted Stock Unit Award, Recipient agrees to the terms and
conditions set forth herein (the “Terms and Conditions”) and acknowledges receipt of a copy of the
Plan. Recipient represents that Recipient has read and understands the terms of the Plan and this
Performance-Based Restricted Stock Unit Award, and accepts this Performance-Based Restricted Stock
Unit Award subject to all such terms and conditions, including any further amendments to the Plan.
Recipient also acknowledges that he or she should consult a tax advisor regarding the tax aspects
of this Award. Recipient is further hereby advised that he or she may not rely on the Company for
any opinion or advice as to the personal tax implications of this Award. IF RECIPIENT DOES NOT
ACCEPT THIS AWARD, HE OR SHE MUST NOTIFY HUMAN RESOURCES, ATTENTION MICHAEL JONES, IN WRITING
WITHIN 30 DAYS OF THE GRANT DATE.



IN WITNESS WHEREOF, this Agreement has been executed by the Company and Recipient to be effective
as of the Grant Date specified above.



BMC SOFTWARE, INC. RECIPIENT



     



	 	 	 
	Michael Vescuso

Senior Vice President, Administration

	 	Signature










     




Print Name



1




	 	 	 	ANNEX A






TO



PERFORMANCE-BASED RESTRICTED STOCK UNIT AWARD AGREEMENT




TERMS AND CONDITIONS




1. Award. Pursuant to the Plan, the Shares shall be issued, as hereinafter provided,
in Recipient’s name, subject to the lapsing of the Forfeiture Restrictions on the Restricted Stock
Units.



2. Definitions. For purposes of this Agreement, the terms “Cause,” “Change of
Control” and “Good Reason” shall have the meanings assigned to such terms in the Employment
Agreement (as defined below) or Change of Control Agreement (as defined below), as applicable to
Recipient, and the following terms shall have the meanings indicated below:




(a) “Change of Control Termination” shall mean a termination of Recipient’s employment
with the Company within the 12-month period beginning on the date upon which a Change of
Control occurs, which termination of employment is by the Company without Cause or by
Recipient within 60 days of an event that constitutes Good Reason.




(b) “Change of Control Agreement” shall mean the Change of Control Agreement, if any,
between the Company and Recipient.




(c) “Employment Agreement” shall mean the Employment Agreement, if any, between the
Company and Recipient, as the same may be amended from time to time.




(d) “Forfeiture Restrictions” shall mean the restrictions to which the Restricted
Shares are subject as described in Section 3(a) hereof.




(e) “Invention and Nondisclosure Agreement” shall mean the Invention and Nondisclosure
Agreement, if any, between the Company and Recipient, as the same may be amended from time
to time.



3. Forfeiture Restrictions on Restricted Stock Units. The following restrictions
apply to the Restricted Stock Units:




(a) Forfeiture Restrictions. The Restricted Stock Units shall not be sold,
assigned, pledged, exchanged, hypothecated or otherwise transferred, encumbered or disposed
of, except for transfer by will or the laws of descent and distribution, and except as
provided in Subsection (b) below, in the event Recipient’s employment with the Company shall
terminate for any reason, Recipient shall, for no consideration, forfeit to the Company all
Restricted Stock Units to the extent then subject to the Forfeiture Restrictions. The
Forfeiture Restrictions shall be binding upon and enforceable against any transferee of the
Restricted Stock Units.




(b) Lapse of Forfeiture Restrictions. With respect to each Performance Period
(as defined in Annex B), the Forfeiture Restrictions shall lapse as to the Restricted Stock
Units in accordance with the performance-based vesting schedule set forth on Annex B (the
“Vesting Schedule”), provided that Recipient has been continuously employed by the Company
(or one of its affiliates) from the Grant Date through the date the Committee certifies the
results for such Performance Period (the “Certification Date”). The Committee shall
determine the Company’s actual performance and shall certify such results as soon as
reasonably practicable following the completion of each Performance Period. To the extent
that the Vesting Schedule provides for partial attainment against a performance target and
such performance is achieved, then the Forfeiture Restrictions shall lapse as to the
corresponding percentage of Restricted Stock Units set forth on the Vesting Schedule. To
the extent that a performance target is not achieved, the corresponding percentage of
Restricted Stock Units as set forth on the Vesting Schedule shall be forfeited to the
Company. The Company shall not issue fractional shares and shall round to the nearest whole
share when calculating vesting and lapsing of the Forfeiture Restrictions.




Further, the Forfeiture Restrictions shall lapse as to all of the Restricted Stock
Units then subject to the Forfeiture Restrictions on the date Recipient incurs a Change of
Control Termination.




	 	4.	 	Adjustment to Restricted Stock Units.






(a) Adjustment for Dividends. If the Company declares a dividend
(other than a stock dividend) payable to shareholders of common stock of the Company
that is payable to shareholders of record after the Grant Date and before the date
Shares are issued hereunder, this award will reflect, and represent the future right
to receive, subject to the restrictions herein, an amount equal to such dividend per
share payable per share of common stock (a “Dividend Equivalent Right”). The
Dividend Equivalent Rights will be subject to the same restrictions and Forfeiture
Restrictions of this Agreement to which the Restricted Stock Units to which they
relate are subject.




(b) Adjustments for Changes in Capitalization. The number and kind of
Restricted Stock Units shall be adjusted for changes in capitalization and other
events as provided in Section 5.2 of the Plan.



5. Issuance of Stock and Payment of Dividend Equivalent Rights. As soon as
practicable after each lapse date on which the Forfeiture Restrictions lapse but not later than
sixty (60) days thereafter, the Company will issue in the Recipient’s name one Share for each
Restricted Stock Unit as to which the Forfeiture Restrictions lapsed on such lapse date and deposit
such Shares via electronic share transfer (DWAC) in an account in the name of Recipient at a broker
of the Company’s choosing and will pay Recipient a cash amount equal to the amount of the Dividend
Equivalent Right multiplied by the number of Restricted Stock Units as to which the Forfeiture
Restrictions lapsed on such lapse date. The Restricted Stock Units attributable to Shares that
have been issued and the related Dividend Equivalent Rights that have been paid will be considered
fully satisfied and will cease to be outstanding under this Agreement.




6. Rights Provided.




(a) Book Entry and Certificates. Recipient shall have no rights of a
shareholder of the Company with respect to any Shares to be issued pursuant to a Restricted
Stock Unit until such shares are deposited in the account of Recipient pursuant to Section 5
hereof.




(b) Corporate Acts. The existence of the Restricted Stock Units shall not
affect in any way the right or power of the Board or the shareholders of the Company to make
or authorize any adjustment, recapitalization, reorganization or other change in the
Company’s capital structure or its business, any merger or consolidation of the Company, any
issue of debt or equity securities, the dissolution or liquidation of the Company or any
sale, lease, exchange or other disposition of all or any part of its assets or business or
any other corporate act or proceeding.



7. Tax Matters. RECIPIENT UNDERSTANDS THAT THE ISSUANCE OF THE SHARES AND PAYMENT OF
THE DIVIDEND EQUIVALENT RIGHTS UPON A LAPSE OF THE FORFEITURE RESTRICTIONS, AND THE SALE OF SUCH
COMMON STOCK, MAY HAVE TAX IMPLICATIONS FOR RECIPIENT. RECIPIENT SHOULD CONSULT HIS OR HER OWN TAX
ADVISOR. RECIPIENT ACKNOWLEDGES THAT HE OR SHE IS NOT RELYING ON THE COMPANY FOR ANY TAX,
FINANCIAL OR LEGAL ADVICE. IT IS SPECIFICALLY UNDERSTOOD BY THE RECIPIENT THAT NO REPRESENTATIONS
ARE MADE AS TO ANY PARTICULAR TAX TREATMENT WITH RESPECT TO THIS AWARD. To the extent that the
issuance of the Shares and the Dividend Equivalent Rights upon the lapse of any Forfeiture
Restrictions results in compensation income to Recipient for federal, state or foreign income tax
purposes, the Company may withhold the number of whole Shares having a market value (based on the
closing price of the Company’s common stock on the date as of which the tax liability is
determined) equal to any tax required to be withheld by reason of such compensation income. The
Company is also authorized to withhold from Recipient’s payroll check or require Recipient to remit
any additional funds to make up the difference between the required tax withholding amount and the
value of the whole Shares calculated in the preceding sentence, or require payment of such amount
from Recipient, such that the Company does not have to withhold a fractional Share for tax
withholding purposes.



8. Status of Stock. The Shares issued under this Agreement will not be sold or
otherwise disposed of in any manner that would constitute a violation of any applicable federal or
state or foreign securities laws.



9. Obligations upon Termination of Employment. In connection with Recipient’s
employment by the Company and its Affiliates, the Company or an Affiliate shall provide Recipient
with access to the confidential information of the Company and its Affiliates, or shall provide
Recipient the opportunity to develop business goodwill inuring to the benefit of the Company and
its Affiliates, or shall entrust business opportunities to Recipient. Recipient has agreed, and
hereby agrees, as specified in more detail in the Employment Agreement and/or the Invention and
Non-Disclosure Agreement, to maintain the confidentiality of the Company’s and its Affiliates’
information and to exercise the highest measures of fidelity and loyalty in the protection and
preservation of the Company’s and its Affiliates’ goodwill and business opportunities. As part of
the consideration for the Restricted Stock Units, to protect the Company’s and its Affiliates’
confidential information, the business goodwill of the Company and its Affiliates that has been and
will in the future be developed in Recipient, and the business opportunities that have been and
will in the future be disclosed or entrusted to Recipient by the Company and its Affiliates, and as
an additional incentive for the Company and Recipient to enter into this Agreement, the Company and
Recipient agree that if, during the term of Recipient’s employment with the Company or its
Affiliates or within a 12-month period (or such longer period, if any, as required for
non-competition by Recipient under the terms of his or her Employment Agreement) following the
date upon which Recipient terminates employment with the Company (the “Restrictive Period”),
Recipient fails for any reason to comply with any of the restrictive covenants set forth in the
Employment Agreement (as in effect on the original effective date of the Employment Agreement),
then the Company shall be entitled to recover from Recipient, and Recipient shall pay to the
Company, an amount of money equal to A multiplied by B, where A equals the value
(determined as of the date the Forfeiture Restrictions lapse) of the Restricted Stock Units with
respect to which the Forfeiture Restrictions lapse during the one-year period preceding (and
including) the date of Recipient’s termination of employment with the Company and its Affiliates,
and B equals the fraction X divided by Y, where X equals the number of days in the
Restrictive Period minus the number of consecutive days following Recipient’s termination
of employment with the Company and its Affiliates during which Recipient remained in compliance
with the restrictive covenants set forth in the Employment Agreement, and Y equals the number of
days in the Restrictive Period.



If any of the restrictions set forth in this Section are found by a court to be unreasonable,
or overly broad in any manner, or otherwise unenforceable, the parties hereto intend for such
restrictions to be modified by the court so as to be reasonable and enforceable and, as so
modified, to be fully enforced.



10. Employment Relationship. For purposes of this Agreement, Recipient shall be
considered to be in the employment of the Company as long as Recipient remains an employee of
either the Company, an Affiliate, or a successor corporation. Nothing in the adoption of the Plan,
nor the award of the Restricted Stock Units thereunder pursuant to this Agreement, shall confer
upon Recipient the right to continued employment by the Company or any of its Affiliates or affect
in any way the right of the Company or an Affiliate to terminate such employment at any time.
Unless otherwise specifically provided in a written employment agreement or by applicable law,
Recipient’s employment by the Company and its Affiliates shall be on an at-will basis, and the
employment relationship may be terminated at any time by either Recipient or the Company or an
Affiliate for any reason whatsoever, with or without cause. Any question as to whether and when
there has been a Termination of employment of Recipient with the Company and its Affiliates, and
the cause of such termination, shall be determined by the Committee, and its determination shall be
final.



11. Acknowledgment of Nature of Plan and Restricted Stock Units. In accepting this
Agreement, Recipient acknowledges that:




(a) the Plan is established voluntarily by the Company, it is discretionary in nature
and may be modified, amended, suspended or terminated by the Company at any time, as
provided in the Plan;




(b) the award of Restricted Stock Units is voluntary and occasional and does not create
any contractual or other right to receive future awards of Restricted Stock Units, or
benefits in lieu of Restricted Stock Units even if Restricted Stock Units have been awarded
repeatedly in the past;




(c) all decisions with respect to future awards, if any, will be at the sole discretion
of the Company;




(d) Recipient’s participation in the Plan is voluntary;




(e) the future value of the underlying Shares is unknown and cannot be predicted with
certainty;




(f) if Recipient receives Shares, the value of such Shares acquired on vesting of
Restricted Stock Units may increase or decrease in value;




(g) notwithstanding any terms or conditions of the Plan to the contrary, in the event
of involuntary termination of Recipient’s employment (whether or not in breach of applicable
laws), Recipient’s right to receive Restricted Stock Units and vest under the Plan, if any,
will terminate effective as of the date that Recipient is no longer actively employed and
will not be extended by any notice period mandated under applicable law; furthermore, in the
event of involuntary termination of employment (whether or not in breach of applicable
laws), Recipient’s right to receive Shares pursuant to the Restricted Stock Units after
termination of employment, if any, will be measured by the date of termination of
Recipient’s active employment and will not be extended by any notice period mandated under
applicable law; the Committee shall have the exclusive discretion to determine when
Recipient is no longer actively employed for purposes of the award of Restricted Stock
Units; and




(h) Recipient acknowledges and agrees that, regardless of whether Recipient’s
employment is terminated with or without cause, notice or pre-termination procedure or
whether Recipient asserts or prevails on a claim that Recipient’s employment was terminable
only for cause or only with notice or pre-termination procedure, Recipient has no right to,
and will not bring any legal claim or action for, (a) any damages for any portion of the
Restricted Stock Units that have been vested and converted into Shares, or (b) termination
of any unvested Restricted Stock Units under this Agreement.



12. Data Privacy Protection Waiver. Recipient acknowledges that in connection with the
administration of this Agreement and of Recipient’s employment relationship with the Company,
relevant personal information concerning Recipient must be transferred to locations of the Company
where the relevant administrative and human resources functions are performed from time to time
(which may be outside Recipient’s country of residence), and access to such information may be
granted to employees, agents and service providers of the Company who are involved in such
administration. Recipient expressly consents to this transfer, access, and related processing of
personal information, including transfer across national borders, and acknowledges that such
transfer, access and processing are necessary for the administration and performance of, and
compliance with, this Agreement, and administration of the employment relationship. Recipient
voluntarily waives any provision of any local, national, or supranational law (such as, without
limitation, the European Union’s Data Protection Directive and national laws enacted in response
thereto, or laws of similar effect in other jurisdictions) which would prohibit or otherwise
regulate such transfer, access and processing.



13. Compliance with Age Discrimination Rule – Applicable Only to Participants Who Are
Subject to the Law in the European Union. The grant of the Restricted Stock Units and the
terms and conditions governing the Award are intended to comply with the age discrimination
provisions of the European Union (EU) Equal Treatment Framework Directive, as implemented into
local law (the “Age Discrimination Rules”), for any Participant who is subject to the laws in the
EU. To the extent a court or tribunal of competent jurisdiction determines that any provision of
the Award is invalid or unenforceable, in whole or in part, under the Age Discrimination Rules, the
court or tribunal, in making such determination, shall have the power and authority to revise or
strike such provision to the minimum extent necessary to make it valid and enforceable to the full
extent permitted under local law.



14. Recovery of Fringe Benefit Tax – Applicable Only to Participants Who Are Subject to
the Law in India. To the extent the Company is liable for the Fringe Benefit Tax imposed by
the laws in India, Recipient shall deliver to the Company at the time such Fringe Benefit Tax is
due such amount of money as the Company may require to meet its obligation under the applicable tax
laws or regulations, and, if Recipient fails to do so, the Company is authorized to withhold from
any cash or Stock remuneration then or thereafter payable to Recipient the amount of any Fringe
Benefit Tax required to be paid with respect to the Restricted Stock Units and the related Dividend
Equivalent Rights.



15. Notices. Any notices or other communications provided for in this Agreement shall
be sufficient if in writing. In the case of Recipient, such notices or communications shall be
effectively delivered by email to Recipient’s Company issued email address or if hand delivered to
Recipient at his or her principal place of employment or if sent by registered or certified mail to
Recipient at the last address Recipient has filed with the Company. In the case of the Company,
such notices or communications shall be effectively delivered if sent by registered or certified
mail to the Company at its principal executive offices.



16. Entire Agreement; Amendment. This Agreement replaces and merges all previous
agreements and discussions relating to the same or similar subject matters between Recipient and
the Company and constitutes the entire agreement between Recipient and the Company with respect to
the subject matter of this Agreement. This Agreement may not be modified in any respect by any
verbal statement, representation or agreement made by any employee, officer, or representative of
the Company or by any written agreement unless signed by an officer of the Company who is expressly
authorized by the Company to execute such document.



17. Binding Effect; Controlling Document. This Agreement shall be binding upon and
inure to the benefit of any successors to the Company and all persons lawfully claiming under
Recipient. In the event of a conflict between the text of this Agreement and the Employment
Agreement, the text of this Agreement shall control.



18. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF TEXAS, UNITED STATES OF AMERICA, APPLICABLE TO CONTRACTS MADE AND TO
BE PERFORMED IN SUCH STATE WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAWS.



2



ANNEX B

TO

PERFORMANCE-BASED RESTRICTED STOCK UNIT AWARD AGREEMENT

VESTING SCHEDULE





3