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Corporate Governance and Nominating Committee Charter

 

January 2009
 

I.

General
  I-1. Purpose of Committee
The Corporate Governance & Nominating Committee (the “Committee”) is appointed by the Board of Directors (the “Board”) of BMC Software, Inc. (the “Company”) to assist the Board in fulfilling its responsibility to the Company's stockholders, potential stockholders and investment community by: (i) identifying individuals qualified to become directors and selecting, or recommending that the Board select, the candidates for all directorships to be filled by the Board or by the stockholders; (ii) developing and recommending to the Board a set of corporate governance principles applicable to the Company; and (iii) otherwise providing leadership on corporate governance issues to ensure that the corporate governance system of the Company performs well.
  I-2. Access to Information
In discharging its role, the Committee is empowered to inquire into any matter it considers appropriate to carry out its responsibilities, with access to all books, records, facilities and personnel of the Company.
  I-3. Authority to Retain Outside Advisors; Adequate Resources
The Committee shall have the authority, to the extent it deems necessary or appropriate, to retain independent special legal counsel or other advisors to assist the Committee in carrying out its responsibilities. The Committee shall have the sole authority to retain, compensate, direct, oversee and terminate any special legal counsel and other advisors so retained by the Committee to assist the Committee, who shall be accountable to the Committee. The Committee also shall have sole authority to retain and to terminate any search firm to be used to assist it in identifying candidates to serve as directors of the Company, including sole authority to approve the fees payable to such search firm and any other terms of retention. The Company shall provide for adequate funding to pay any such special legal counsel or other advisors so retained by the Committee and to pay ordinary administrative expenses of the Committee that are necessary or appropriate in carrying out the Committee's responsibilities.
 

II.

Committee Membership
  II-1. Composition; Committee Chair
The Committee shall consist of at least three members of the Board who shall be appointed by the Board, on the recommendation of the Committee. Committee members shall continue to be members as long as they remain directors of the Company and until their successors as Committee members are appointed and qualified or until their earlier death, incapacity, resignation or removal. Any member may be removed by the Board, with or without cause, at any time. The Chairman of the Committee shall be appointed from among the Committee members by, and serve at the pleasure of, the Board, shall preside at meetings of the Committee and shall have authority to convene meetings, set agendas for meetings, and determine the Committee's information needs, except as otherwise provided by action of the Committee. In the absence of the Chairman at a duly convened meeting, the Committee shall select a temporary substitute from among its members to serve as chair of the meeting.
  II-2. Independence
Each member of the Committee must meet the independence requirements of the NASDAQ, any SEC and other regulatory requirements applicable to the Company and any additional independence requirements set forth in the Company’s Corporate Governance Guidelines.
 

III.

Meetings
  III-1. Committee Meetings
The Committee shall meet on a regularly scheduled basis at least quarterly, and more frequently as circumstances require. Meetings of the Committee may be held telephonically. Meeting agendas will be prepared and provided in advance to the Committee, together with any appropriate briefing materials. A quorum of the Committee consists of a majority of its members, and all actions of the Committee must be approved by a majority vote of the members present. Voting may be conducted verbally and the results, together with all other business conducted at each meeting, will be recorded in the minutes of the meeting. The Committee may also take action via unanimous written or electronic consent to the extent permitted by the Company's Bylaws.
 

IV.

Committee Authority and Responsibilities
  IV-1. Responsibilities and Duties
The following responsibilities are set forth as a guide to fulfilling the Committee’s purposes, with the understanding that the Committee’s activities may diverge as appropriate given the circumstances.  The Committee is authorized to carry out these activities and other actions reasonably related to the Committee’s purposes or assigned by the Board from time to time.  The Committee may delegate authority to one or more members or subcommittees when deemed appropriate, provided that the actions of any such members or subcommittees shall be reported to the full Committee no later than at its next scheduled meeting.
    To fulfill its purpose, the Committee shall:
    A. Board Selection, Composition, Evaluation and Compensation
 

 
  1. Identify individuals believed to be qualified as candidates to serve on the Board and recommend that the Board select the candidates for all directorships to be filled by the Board or by the stockholders at an annual or special meeting.  In identifying candidates for membership on the Board, the Committee shall take into account all factors it considers appropriate, which may include (a) ensuring that the Board, as a whole, is diverse and consists of individuals with various and relevant career experience, relevant technical skills, industry knowledge and experience, financial expertise (including expertise that could qualify a director as a “financial expert,” as that term is defined by the rules of the SEC), local or community ties and (b) minimum individual qualifications, including strength of character, mature judgment, familiarity with the Company’s business and industry, independence of thought and an ability to work collegially as well as the criteria set forth in the Company’s Corporate Governance Guidelines.  The Committee also may consider the extent to which the candidate would fill a present need on the Board.

  2. Review and make recommendations to the full Board as to whether members of the Board should stand for re-election.  Consider matters relating to the retirement of members of the Board including the Company’s age guideline.  The Committee reviews any letters of resignation received from directors upon the loss of principal employment or retirement from principal employment and reviews the continued appropriateness of Board membership under any such circumstances and determines whether to accept the resignation or permit the director to continue to serve on the Board.

  3. Evaluate candidates for nomination to the Board, including those recommended by stockholders.  In that connection, the Committee shall adopt procedures for the submission of recommendations by stockholders as it deems appropriate.

  4. Conduct all necessary and appropriate inquiries into the backgrounds and qualifications of possible candidates.

  5. Consider questions of independence and possible conflicts of interest of members of the Board and whether a candidate has special interests or a specific agenda that would impair his or her ability to effectively represent the interests of all stockholders.

  6. Review and make recommendations, as the Committee deems appropriate, regarding the composition and size of the Board in order to ensure the Board has the requisite expertise and its membership consists of persons with sufficiently diverse and independent backgrounds.

  7. At least annually, oversee the evaluation of the Board and its Chairman or Presiding Director, as applicable.  Assist the Chairman or Presiding Director, if applicable, in reviewing each individual director’s performance annually.  As part of this review, the Committee shall assess independence, conformance with the Board membership criteria set forth in the Company’s Corporate Governance Guidelines, and attendance.

  8. Oversee orientation for new directors and suggest director education and training for the full Board, committees and/or individual directors, as appropriate.

  9. Review and recommend compensation for non-employee members of the Board, including but not limited to the following elements:  retainer, meeting fees, committee fees, equity compensation, and benefits and perquisites, if any.
   

B.  Committee Selection, Composition and Evaluation

  1. Establish, monitor and recommend the purpose, structure and operations of the various committees of the Board (including the annual self-evaluation process for each committee) and the qualifications and criteria for membership on each committee of the Board.
  2. Periodically review the assignments of Board members and chairs to Board committees and consider the rotation of chairs and members approximately every three to five years with a view toward balancing the benefits derived from continuity against the benefits derived from the diversity of experience and viewpoints of the various directors.  The Committee makes its recommendations to the full Board with respect to the assignment of Board members and chairs to committees, and the full Board appoints the chairs and members to the committees.
   

C.  Corporate Governance

  1. Review the adequacy of the certificate of incorporation and bylaws of the Company and recommend to the Board, as conditions dictate, that it propose amendments to the certificate of incorporation for consideration by the Company’s stockholders or adopt amendments to the Company’s bylaws.
  2. Develop and recommend to the Board a set of corporate governance principles and keep abreast of developments with regard to corporate governance to enable the Committee to make recommendations to the Board in light of such developments as may be appropriate.
  3. Review policies relating to meetings of the Board.  This may include meeting schedules and locations, meeting agendas and procedures for delivery of materials in advance of meetings.
  4. Review any requests for waivers under the Company’s code(s) of business conduct and ethics (including codes that apply to all employees as well as those applicable to directors, senior officers and financial officers and the Company’s policies and procedures concerning trading in Company securities and use of proprietary or confidential information) and make a recommendation to the full Board with regard to any waiver sought with respect to any executive officer or director.
  5. Review, discuss with management and approve any transactions or courses of dealing with related parties (e.g., including significant shareholders of the Company, directors, corporate officers or other members of senior management or their family members).  Review and address any other conflicts of interests involving directors or executive officers. 
   

D.  Reports; Charter Assessment and Self-Evaluation

  1. Report regularly to the Board on the Committee’s activities, findings and recommendations, and any other matters the Committee deems appropriate or the Board requests.   Minutes of the Committee meetings and other actions shall be prepared and submitted for approval by the Committee and shall be furnished to the Board at regular intervals.
  2. Conduct an annual self-evaluation of the performance of the Committee and its members, including its effectiveness and compliance with this Charter. The results of the self-evaluation shall be reported to the Board.
  3. Review and reassess the adequacy of this Charter annually, and recommend to the Board for its approval any amendments as the Committee deems appropriate. 
   Adopted by the Corporate Governance & Nominating Committee:  January 21, 2009

Approved by the Board of Directors:  January 21, 2009