EXHIBIT 10.29
EXECUTIVE: XXXXXX X. XXXXXX
BINDVIEW CORPORATION
FIRST AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
THIS FIRST AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (this
"AGREEMENT") is made between BindView Development Corporation, a Texas
corporation (the "COMPANY"),1 and the "EXECUTIVE" identified above. Unless
otherwise indicated, all references to Sections are to Sections in this
Agreement. This Agreement is effective as of the date executed by the Executive
as written on the signature page ("EFFECTIVE DATE"). This Agreement amends,
restates, and therefore supersedes the Executive Employment Agreement between
the parties executed May 1, 2001, but without a break in the Executive's
Employment with the Company.
1. BACKGROUND. The Company desires to obtain the services of the Executive,
and the Executive desires to be employed by the Company upon the terms
and conditions set forth in this Agreement.
2. DEFINITIONS. For purposes of this Agreement, the following terms have the
meanings set forth below.
2.1 BINDVIEW BUSINESS is intentionally defined broadly in view of the
Executive's senior position with the Company; it means (1) any business
engaged in by the Company or any other BindView Company during the
Executive's Employment, or (2) any other business as to which the Company
or any other BindView Company has made demonstrable preparation to engage
in during such Employment and (i) in which preparation the Executive
materially participated, or (ii) concerning which preparation the
Executive had access to Confidential Information.
2.2 BINDVIEW COMPANY or BINDVIEW COMPANIES means BindView and its affiliates.
For purposes of this Agreement, (i) an affiliate of a Person is defined
as any other Person that controls or is controlled by or is under common
control with that Person, and (ii) control is defined as the direct or
indirect ownership of at least fifty percent (50%) of the equity or
beneficial interest in such Person or the right to vote for or appoint a
majority of the board of directors or other governing body of such
Person.
2.3 BINDVIEW INVENTION means any Invention that is made, conceived, or
reduced to practice by any person (in whole or in part, either alone or
jointly with others, whether or not during regular working hours),
whether or not potentially patentable or copyrightable in the U.S. or
elsewhere, and the Invention either: (i) involves equipment, supplies,
facilities, or trade secret information of any BindView Company; (ii)
involves the time for which the person was compensated by any BindView
Company; (iii) relates to any BindView Business; or (iv) results, in
whole or in part, from work which the person performed for any BindView
Company.
2.4 BINDVIEW MATERIALS means any and all reports, notes, emails, manuals,
computer programs or data, photographs, and all other recorded, written,
or printed matter, in any format (including but not limited to electronic
and hard-copy formats), (i) that the Executive receives from any BindView
----------------------
(1) "BindView Corporation" is a registered assumed name of BindView Development
Corporation.
EXECUTIVE: XXXXXX X. XXXXXX
Company, or (ii) that the Executive creates during the Employment and
that relate to any BindView Business, or (iii) that contain Confidential
Information of any BindView Company.
2.5 CAUSE means any one or more of the following:
(a) any conviction of, or plea of guilty or nolo contendere to, any
felony, whether of the United States or any state thereof or any
similar foreign law to which the Executive may be subject;
(b) the commission of any act of fraud or gross negligence by the
Executive in the course of his Employment which, in the case of
gross negligence, has a materially adverse effect on the business
or financial condition of the Company;
(c) the commission of repeated material breaches of this Agreement by
the Executive where the Company notifies the Executive in writing
of each such material breach, and prior to termination, the
Company gives the Executive thirty (30) days advance written
notice of its intention to terminate the Employment for Cause at
the end of such thirty-day period.
(d) any willful material misrepresentation at any time by the
Executive to the Company;
(e) the Executive's willful failure or refusal to comply with any of
his material obligations under this Agreement or to comply with a
reasonable and lawful instruction of the Board, (other than for
reason of the Executive's physical or mental incapacity), which in
each case continues for a period of 15 days after the Executive's
receipt of a written notice from the Board identifying the
objectionable action or inaction by the Executive;
(f) any willful or grossly negligent failure substantially to comply
with any written rules, regulations, policies or procedures of the
Company furnished to the Executive which, if not complied with,
would reasonably be expected to have a material adverse effect on
the business or financial condition of the Company; or
(g) any willful failure to comply with the Company's policies
regarding xxxxxxx xxxxxxx as adopted by the Board from time to
time.
Notwithstanding the foregoing, any act, or failure to act, based upon
authority given pursuant to a resolution duly adopted by the Board or
upon the instructions of the Chief Executive Officer of the Company or
based upon the advice of counsel for the Company shall be conclusively
presumed to be done, or omitted to be done, by the Executive in good
faith and in the best interests of the Company and thus shall not be
deemed grounds for termination for Cause.
2.6 CONFIDENTIAL INFORMATION means information of any BindView Business that
the Executive learns in the course of the Employment, other than
information which the Executive can show: (i) was in the Executive's
possession or within the Executive's knowledge before the Employment; or
(ii) is or becomes generally known to persons who could take economic
advantage of it, other than officers, directors, and employees of the
BindView Companies, without breach of an obligation to a BindView
Company; or (iii) the Executive obtained from a party having the right to
disclose it without violation of an obligation to a BindView Company; or
(iv) is required to be disclosed pursuant to legal process (e.g., a
subpoena), provided that the Executive notifies the Company immediately
EXECUTIVE EMPLOYMENT AGREEMENT 12/31/2001 PAGE 2
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upon receiving or becoming aware of the legal process in question. No
combination of information will be deemed to be within any of the four
exceptions (i) through (iv) in the previous sentence, however, whether or
not the component parts of the combination are within one or more
exceptions, unless the combination itself and its economic value and
principles of operation are themselves within such an exception.
2.7 DESIGNATED OWNER means (i) the Company or (ii) if from time to time the
Company designates one or more other BindView Companies to own certain
inventions or other intellectual-property rights, such designated other
BindView Company.
2.8 DISABILITY means the inability of the Executive to perform his duties
hereunder, by reason of physical or mental injury or illness,
incapacitating him for a continuous period exceeding three months,
excluding any leaves of absence approved by the Company.
2.9 EMPLOYMENT means the Executive's employment with the Company.
2.10 GOOD REASON means only the following events, and specifically excluding
any such event that occurs (i) for reason of the Executive's physical or
mental incapacity or (ii) with the Executive's prior consent:
(a) (1) a removal of the Executive from his position with the Company,
or (2) the assignment by the Company to the Executive of duties
that are materially inconsistent with the Executive's position
with Company immediately prior to such assignment, or (3) the
removal by the Company from the Executive of a material portion of
those duties actually appertaining to the Executive, and/or those
duties usually appertaining to the Executive's position with the
Company, immediately prior to such removal; or
(b) the Executive no longer reports directly to the chief executive
officer of the Company; or
(c) a reduction by the Company in the amount of the Employee's base
salary or of the On-Target Amount, except as part of an
across-the-board reduction for the Company's senior executives
generally.
2.11 INVENTION means any and all inventions, discoveries, and improvements,
whether or not patentable, along with any and all materials and work
product relating thereto.
2.12 ON-TARGET AMOUNT has the meaning set forth in Schedule 1.
2.13 PERSON means a natural person, corporation, partnership, or other legal
entity, or a joint venture of two or more of the foregoing.
EXECUTIVE EMPLOYMENT AGREEMENT 12/31/2001 PAGE 3
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2.14 RESIGN FOR GOOD REASON means that all of the following occur:
(a) the Company gives the Executive notice, formal or informal, in
accordance with this Agreement or otherwise, of the occurrence of
one or more events constituting Good Reason (other than a formal
or informal notice that the Employment will be terminated);
(b) within 20 days after receiving the first such notice or any
subsequent such notice, the Executive provides the Company with
notice, in accordance with this Agreement, that the Executive
deems such event to constitute Good Reason;
(c) the Company fails to revoke, rescind, or cancel the event that was
the subject of the notice under subparagraph (b) within 10 days
after such notice; and
(d) within five business days after the end of the 10-day period in
subparagraph (c), the Executive delivers to the Company a notice
of resignation in accordance with this Agreement and states
therein that the resignation is for the Good Reason set forth in
the notice under subparagraph (b).
2.15 SCHEDULE 1 and SCHEDULE 2 mean, respectively, Schedule 1 and Schedule 2
set forth at the end of this Agreement above the parties' signatures.
2.16 SEVERANCE BENEFITS means the post-employment compensation and benefits to
be provided to the Executive by the Company in certain circumstances, as
set forth in Section 6.
2.17 TRIBUNAL means an arbitration panel, court, or other body of competent
jurisdiction that is deciding a matter relating to this Agreement.
3. EMPLOYMENT.
3.1 Subject to the terms and conditions hereinafter set forth, the Company
hereby agrees to employ the Executive, and the Executive hereby agrees to
serve the Company, in the position referred to in Schedule 1. In that
connection, the Executive will (i) devote his full time, attention, and
energies to the business of the Company and will diligently and to the
best of his ability perform all duties incident to his employment
hereunder; (ii) use his best efforts to promote the interests and
goodwill of the Company; (iii) perform such other duties commensurate
with his office as the Chief Executive Officer of the Company may from
time-to-time assign to him.
3.2 Section 3.1 shall not be construed as preventing the Executive from (i)
serving on corporate, civic or charitable boards or committees, (ii)
engaging in other business activities that do not represent a conflict of
interest with the full execution of his duties to the Company, or (iii)
making investments in other businesses or enterprises; provided in no
event shall any such service, business activity or investment require the
provision of substantial services by the Executive to the operations or
the affairs of such businesses or enterprises such that the provision
thereof would interfere in any respect with the performance of the
Executive's duties hereunder.
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EXECUTIVE: XXXXXX X. XXXXXX
4. COMPENSATION AND BENEFITS DURING EMPLOYMENT. During the Employment, the
Company shall provide compensation and benefits to the Executive as
follows.
4.1 The Company shall pay the Executive, subject to the terms and conditions
of this Agreement, a monthly base salary at the rate of not less than the
initial salary set forth in Schedule 1, payable in accordance with the
normal payroll practices of the Company but in no less than equal
bi-weekly installments, less withholding required by law or agreed to by
the Executive.
4.2 As additional compensation for services hereunder:
(a) The Executive shall be eligible for a contingent bonus with an
annual On-Target Amount as set forth in Schedule 1 (except that
the On-Target Amount for the calendar year in which the Employment
begins will be reduced pro rata by the number of days elapsed in
such year on the Effective Date). The actual bonus amount in any
given year, if any, will be determined by and contingent upon the
Company's achievement of financial performance objectives set by
the Company from time to time in its discretion for determining
payment of bonuses to its senior executives. The bonus, if any,
will be paid at the same time and in the same manner as the
payment of bonuses to other senior executives of the Company as
determined by the Company in its discretion;
(b) The Executive shall be entitled to a signing bonus, in a total
amount, and payable in installments at times, set forth in
Schedule 2, in accordance with the normal payroll practices of the
Company. The Executive may elect, by notice to the Company, to
defer any then-due installment of the signing bonus, without
interest; and
(c) At a time determined by the Company in its discretion (but in no
event later than December 31, 2002), the Company will grant to the
Executive one or more options to purchase shares of the Company's
common stock, covering an aggregate number of shares (adjusted to
take into account any intervening stock splits, reverse splits,
recapitalizations, etc.) equal to (i) 100,000 shares, or (ii) if
greater, the average number of shares for which options were
granted between May 2, 2001 and December 31, 2002 to senior vice
presidents of the Company, excluding the Executive.
(1) Such option(s) granted to the Executive will be in
accordance with the Company's Omnibus Incentive Plan or, in
the discretion of the Company, another stock-option plan
used for option grants to senior executives.
(2) The option grant(s) to the Executive will be on terms that
include vesting over four years beginning on the grant
date, with 25% vesting at one year and quarterly vesting of
the remainder.
4.3 The Executive shall, upon satisfaction of any eligibility requirements
with respect thereto, be entitled to participate in all employee benefit
plans of the Company, including but not limited to those health, dental,
accidental death and dismemberment, and long term disability plans,
401(k) plans, pension or profit-sharing plans, stock option plans, and
similar benefits, of the Company now or
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hereafter in effect that are made available to executive officers of the
Company and on the same terms as offered to other executive officers of
the Company.
4.4 The Company shall maintain for the Executive any specific benefits
summarized in Schedule 1.
4.5 The Company will reimburse the Executive for reasonable business expenses
incurred by the Executive in connection with the Employment in accordance
with the Company's then-current policies and IRS guidelines.
4.6 During the Employment the Executive shall be entitled to sick leave,
holidays, and an annual vacation, all in accordance with the regular
policy of the Company for its executives (but in no event less than the
minimum annual vacation set forth in Schedule 1), during which time his
compensation and benefits shall be paid or provided in full. Each such
vacation shall be taken by the Executive at such times as may be mutually
agreed upon by the Executive and Company.
5. TERMINATION OF EMPLOYMENT.
5.1 The Executive will be an "at will" employee during the entire time of the
Employment. Either the Company or the Executive can terminate the
Employment at any time, for any reason or no reason, with or without
cause. If the Employee resigns from the Company, the Employee will give
the Company at least two (2) weeks' prior notice of resignation. The
Employment will end on the termination date stated in the Company's
notice of termination to the Executive or in the Executive's notice of
resignation to the Company, as applicable. The Company may in its
discretion waive any notice period stated in the Employee's notice of
resignation, in which case the Employment will end immediately upon such
waiver.
5.2 If the Employment is terminated for any reason other than death, to help
the Company protect its intellectual property rights and other interests,
the Executive shall cooperate in such exit-interview procedures as may be
reasonably requested by the Company, including but not limited to
providing the Company with reasonably complete and accurate information
about any plans the Executive may have for future employment.
5.3 Any amounts payable under Section 4 which shall have been earned but not
yet paid, including but not limited to vacation pay and any unpaid
installments of the sign-on bonus, but excluding contingent bonus amounts
under Section 4.2(a) (which are addressed in Section 6.3 below), shall be
paid by the Company to the Executive.
5.4 If the Employment is terminated because of (i) the death of the
Executive, or (ii) by the Company because of the Executive's Disability,
then the Company will pay to the Executive, or to the Executive's heirs,
assigns, successors-in-interest, or legal representatives, any and all
salary, other benefits or incentive payments earned, accrued or provided
to or by the Executive under this Agreement, or granted to the Executive
by the officers and/or board of directors of the Company, through the
date of the Executive's death or disability and not already paid.
5.5 Promptly after any termination of the Employment for any reason, the
Executive shall pay any amount or amounts then owed by the Executive to
the Company. Except to the extent (if any) prohibited by
EXECUTIVE EMPLOYMENT AGREEMENT 12/31/2001 PAGE 6
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applicable law, the Company may offset any such amount(s) against any
amounts owed to the Executive by the Company.
6. SEVERANCE BENEFITS. Depending on the reason for termination of the
Employment, the Executive will be entitled to the Severance Benefits
provided in this Section 6 during a Severance Period as set forth in
Schedule 1. The Severance Period, if any, will begin on the effective
date of termination of the Employment.
6.1 During the Severance Period, if any, the Company shall pay the Executive
the Executive's then-current base salary as provided in Section 4.1.
6.2 During the Severance Period, if any, the Company shall maintain the
Executive as a participant in, or provide benefits comparable to those
of, the health insurance benefit plan specified under Section 4.3.
6.3 If the Employment is terminated, the Executive will be entitled to
payment of any declared or undeclared and unpaid contingent bonus amounts
under Section 4.2(a), for the fiscal year in which the notice of
termination (including notice of resignation) occurs and for preceding
fiscal years, only as follows:
--------------------------------------------------------------------------------------------------------
PAYMENT OF UNPAID BONUS UNDER
SECTION 4.2(a) FOR PRECEDING PAYMENT OF UNPAID BONUS UNDER SECTION
EVENT FISCAL YEAR(S) 4.2(a) FOR THEN-CURRENT FISCAL YEAR
--------------------------------------------------------------------------------------------------------
If Executive is If Executive is
entitled to a not entitled to
Severance Period a Severance
Period
--------------------------------------------------------------------------------------------------------
Executive resigns Only those bonus amounts for Pro-rated, to be paid None
preceding fiscal year(s) that by the end of the
were already declared as of first quarter of the
the date of notice of following fiscal year
resignation. To be paid at [see Note 1]
the same time as to other
Company executives.
--------------------------------------------------------------------------------------------------------
Company terminates All bonus amounts for Pro-rated, to be paid None
the Employment preceding fiscal year(s) by the end of the
(whether declared or first quarter of the
undeclared as of date of following fiscal year
notice of termination). To be [see Note 1]
paid at the same time as to
other Company executives
--------------------------------------------------------------------------------------------------------
NOTE 1: Assume hypothetically that (i) the Employment is terminated
effective September 30 of a given fiscal year of the Company, i.e., 3/4
of the way through that fiscal year, under circumstances entitling the
Executive to a Severance Period, (ii) if the Employment had not been
terminated, the Executive would have received a contingent bonus for that
fiscal year equal to 95% of the
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On-Target Amount, and (iii) the Executive did not receive any payment of
such contingent bonus before the effective date of termination. In that
hypothetical situation, the Executive would be entitled to a contingent
bonus of 3/4 of 95% of the On-Target Amount, payable no later than the
following March 31.
6.4 Other than the above Severance Benefits, the Executive shall not be
entitled to any payment, benefit, damages, award or compensation in
connection with termination of the Employment, by either the Company or
the Executive, except as may be expressly provided in another written
agreement, if any, executed by the Executive and by an authorized officer
of the Company. Neither the Executive nor the Company is obligated to
enter into any such other written agreement.
6.5 The Executive will not be required to mitigate the amount of any payment
which is payable by the Company during the Severance Period.
6.6 As a condition to receipt of Severance Benefits, if any, the Company, in
its sole discretion, may require the Executive to first execute a
release, in a form approved by the Company, releasing the Company and its
affiliates, if any, and the officers, directors, employees, and agents of
each of them, from any and all claims and causes of action, if any,
arising out of or relating to the Executive's Employment or the
termination thereof. The performance of the Company's obligations to
provide Severance Benefits, and the receipt by the Executive of the same,
shall constitute full and final settlement of all such claims and causes
of action, if any.
6.7 The Executive's rights to Severance Benefits under this Agreement,
regardless whether or not they are accepted by the Executive in the event
of termination of the Employment, shall be the Executive's EXCLUSIVE
RIGHTS against the Company and the Company's EXCLUSIVE LIABILITY to the
Executive, in contract, tort, or otherwise, arising out of or relating to
any termination of the Executive's Employment for any reason. Nothing in
this Agreement, however, shall be construed to be a waiver by the
Executive of any benefits accrued for or due to the Executive under any
employee benefit plan (as such term is defined in the Employees'
Retirement Income Security Act of 1974, as amended) maintained by the
Company, if any, except that the Executive shall not be entitled to any
severance benefits pursuant to any severance plan or program of the
Company other than as provided herein.
6.8 At any time during a Severance Period, the Executive may elect, by notice
to the Company, to have any remaining Severance Benefit amounts paid to
him in a lump sum, computed by discounting such remaining amounts to
present value at a rate of 8% per annum from the date each such amount
would be due to the date paid. Payment will be made within 30 days after
the Company's receipt of such notice.
7. TAX WITHHOLDING. Notwithstanding any other provision of this Agreement,
the Company may withhold from amounts payable under this Agreement, or
under any other agreement between the Executive and the Company, all
federal, state, local and foreign taxes that are required to be withheld
by applicable laws or regulations.
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8. CONFIDENTIAL INFORMATION.
8.1 The Executive acknowledges that the law provides the Company with
protection for its trade secrets and confidential information. The
Executive will not disclose, directly or indirectly, any Confidential
Information without authorization from the Company's management. The
Executive will not use any Confidential Information in any way, either
during or after the Employment with the Company, except as required in
the course of the Employment.
8.2 The Executive will strictly adhere to any obligations that may be owed to
former employers insofar as the Executive's use or disclosure of their
confidential information is concerned.
8.3 All originals and all copies of any drawings, blueprints, manuals,
reports, computer programs or data, notebooks, notes, photographs, and
all other recorded, written, or printed matter relating to research,
manufacturing operations, or business of the Company made or received by
the Executive during the Employment are the property of the Company. Upon
any termination of the Employment, regardless of the circumstances, the
Executive will immediately deliver to the Company all property of the
Company which may still be in the Executive's possession. The Executive
will not remove or assist in removing such property from the Company's
premises under any circumstances, either during the Employment or after
termination thereof, except as authorized by the Company management.
9. OWNERSHIP OF INTELLECTUAL PROPERTY. The following provisions apply except
to the extent expressly stated otherwise in Schedule 1.
9.1 The Company will be the sole owner of any and all BindView Inventions and
BindView Materials which the Executive participates in inventing or
developing in any way. The Executive will promptly disclose to the
Company, or its nominee(s), without additional compensation, all BindView
Inventions and BindView Materials. The Executive will assist the Company,
at the Company's expense, in protecting any intellectual property rights
that may be available anywhere in the world for BindView Inventions and
BindView Materials, including but not limited to signing U.S. or foreign
patent applications, oaths or declarations relating to such patent
applications, and similar documents. To the extent that any BindView
Invention or BindView Materials are eligible under applicable law to be
deemed a "work made for hire," or otherwise to be owned automatically by
the Company, the same will be deemed as such, without additional
compensation to the Executive.
9.2 To the extent that, as a matter of law, the Executive retains any
so-called "moral rights" or similar rights as in any BindView Invention
or BindView Materials, the Executive authorizes the Company or its
designee to make any changes it desires to any part of the same; to
combine any such part with other materials; and to withhold the
Executive's identity in connection with any business operations relating
to the same; in any case without additional compensation to the
Executive.
10. NONCOMPETITION COVENANT.
10.1 The Company agrees to provide the Executive, during the Employment, with
on-going access to pre-existing and new Confidential Information
commensurate with the Executive's duties, including
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but not limited to access to appropriate portions of the Company's
computer network. To aid in the protection of the Company's legitimate
interests in such Confidential Information, the Executive agrees that,
beginning on the date that the Company first provides the Executive with
such access in any form, and ending on the date set forth in Section
10.4, unless the Company in its sole discretion gives its prior written
consent, the Executive will not, directly or indirectly:
(a) participate, for himself or on behalf of any other Person, in any
business that competes with any BindView Business anywhere in the
world, where the Executive's Employment related in any way to such
BindView Business. As used in the previous sentence, "participate"
includes but is not limited to permitting the Executive's name
directly or indirectly to be used by or to become associated with
any other Person (including as an advisor, representative, agent,
promoter, independent contractor, provider of personal services or
otherwise) in connection with such competing business;
(b) interfere, directly or indirectly, with the relationship between
any BindView Company and its employees by inducing any such
employee to terminate his or her employment;
(c) solicit for employment, directly or indirectly, on behalf of the
Executive or any other Person, any person who is at the time in
question, or at any time in the then-past three-month period has
been, an employee of any of the BindView Companies; or
(d) induce or assist any other Person to engage in any of the
activities described in subparagraphs (i) through (iii).
10.2 The Executive acknowledges that the Company would not permit the
Executive to have or to continue to have access to Confidential
Information without the Executive's agreement to the restrictions in
Section 10.1. The Executive further acknowledges and agrees that: (i) the
restrictions in Section 10.1 are fair and reasonable and the result of
negotiation, relate to special, unique and extraordinary matters.
10.3 If the Executive has never been provided with any access to Confidential
Information at the time the Employment is terminated (including but not
limited to never having been provided access to an email account or other
access to a computer network of any BindView Company), then the Executive
will be automatically released from the restrictions in Section 10.1.
Such release will be the Executive's EXCLUSIVE REMEDY for any actual or
alleged breach of this Agreement by the Company in not providing such
access.
10.4 If the Executive violates the restrictions set forth in Section 10.1, and
the Company brings a legal action for injunctive or other relief, the
Company shall not be deprived of the benefit of those restrictions.
Accordingly, the restrictions in Section 10.1 will end one (1) year after
the later of (i) the date of termination of the Employment for any
reason, and (ii) the date of entry by a court of competent jurisdiction
of a final judgment enforcing the restrictions in Section 10.1, as
written or as modified by the court.
10.5 The Company will not unreasonably withhold its consent to the Executive's
employment, after the Employment, by a publicly-traded corporation that
competes with one or more of the BindView
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Companies, but only if, before starting the new employment, the Executive
provides the Company with a document reasonably satisfactory to the
Company, signed by both the Executive and such corporation, containing
(i) a written description of the Executive's duties in the new job, and
(ii) specific assurances that in the new job the Executive will neither
use nor disclose Confidential Information of any BindView Company.
10.6 The Executive may acquire a direct or indirect ownership interest of not
more than 5% of the outstanding securities of any corporation which is
engaged in activities prohibited by Section 10.1 which is listed on any
recognized securities exchange or traded in the over-the-counter market
in the United States, provided that such investment is of a totally
passive nature and does not involve the Executive's devoting time to the
management or operations of such corporation.
10.7 If a Tribunal determines that any of the restrictions set forth in
Section 10.1 is unreasonably broad or otherwise unenforceable under
applicable law, then (i) such determination shall be binding only within
the geographical jurisdiction of the Tribunal, and (ii) the restriction
will not be terminated or rendered unenforceable, but instead will be
reformed (solely for enforcement within the geographic jurisdiction of
the Tribunal) to the minimum extent required to render it enforceable.
11. EMPLOYEE HANDBOOKS, ETC. From time to time, the Company may, in its
discretion, establish, maintain and distribute employee manuals or
handbooks or personnel policy manuals, and officers or other
representatives of the Company may make written or oral statements
relating to personnel policies and procedures. The Executive will adhere
to and follow all rules, regulations, and policies of the Company set
forth in such manuals, handbooks, or statements as they now exist or may
later be amended or modified. Such manuals, handbooks and statements do
not constitute a part of this Agreement nor a separate contract, and
shall not be deemed as amending this Agreement or as creating any binding
obligation on the part of the Company, but are intended only for general
guidance.
12. ARBITRATION.
12.1 Except as set forth in Section 12.3 or to the extent prohibited by
applicable law, any dispute, controversy or claim arising out of (by
statute, common law, or otherwise) or relating to (i) this Agreement or
its interpretation, performance, or alleged breach, or (ii) the
Employment, including but not limited to its commencement and its
termination, will be submitted to binding arbitration before a single
arbitrator in accordance with the National Rules for the Resolution of
Employment Disputes of the American Arbitration Association (AAA) in
effect on the date of the demand for arbitration.
12.2 The arbitration shall take place before a single arbitrator, who will
preferably but not necessarily (x) be a practicing attorney, and (y) have
at least five years' experience in working in or with computer software
companies. Unless otherwise agreed by the parties, the arbitration shall
take place in the city in which the Executive's principal office space is
located at the time of the dispute or was located at the time of
termination of the Employment (if applicable). Unless otherwise agreed by
the parties, the Company will pay all reasonable fees and expenses
charged by the arbitrator and the AAA but will not pay the Executive's
fees or expenses associated with the arbitration. The arbitrator is
hereby directed to take all reasonable measures not inconsistent with the
interests of justice
EXECUTIVE EMPLOYMENT AGREEMENT 12/31/2001 PAGE 11
EXECUTIVE: XXXXXX X. XXXXXX
to expedite, and minimize the cost of, the arbitration proceedings.
Judgment upon the award rendered by the arbitrator may be entered in any
court having jurisdiction.
12.3 To protect Inventions, trade secrets, or other confidential information,
the Company may seek temporary, preliminary, or permanent injunctive
relief in a court of competent jurisdiction, in each case, without
waiving its right to arbitration.
12.4 At the request of either party, the arbitrator may take any interim
measures s/he deems necessary with respect to the subject matter of the
dispute, including measures for the preservation of confidentiality set
forth in this Agreement.
13. OTHER PROVISIONS.
13.1 This Agreement shall inure to the benefit of and be binding upon (i) the
Company and its successors and assigns and (ii) the Executive and the
Executive's heirs and legal representatives, except that the Executive's
duties and responsibilities under this Agreement are of a personal nature
and will not be assignable or delegable in whole or in part without the
Company's prior written consent.
13.2 The Executive represents and warrants (i) that he has no obligations,
contractual or otherwise, inconsistent with the Executive's obligations
set forth in this Agreement, and (ii) that all of his responses to any
requests, by or on behalf of the Company, for information and/or
documents, in connection with the Company's hiring of the Executive
and/or with the negotiation of this Agreement, are truthful and complete.
13.3 All notices and statements with respect to this Agreement must be in
writing and shall be delivered by certified mail return receipt
requested; hand delivery with written acknowledgment of receipt; FAX
transmission with machine-printed confirmation of delivery; or overnight
courier with delivery-tracking capability. Notices to the Company shall
be addressed to the Company's general counsel at the Company's
then-current principal operating office. Notices to the Executive may be
delivered to the Executive in person or to the Executive's then-current
home address as indicated on the Executive's pay stubs or, if no address
is so indicated, as set forth in the Company's payroll records.
13.4 This Agreement sets forth the entire agreement of the parties concerning
the subjects covered herein; there are no promises, understandings,
representations, or warranties of any kind concerning those subjects
except as expressly set forth in this Agreement.
13.5 Any modification of this Agreement must be in writing and signed by all
parties; any attempt to modify this Agreement, orally or in writing, not
executed by all parties will be void.
13.6 If any provision of this Agreement, or its application to anyone or under
any circumstances, is adjudicated to be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability will not affect any
other provision or application of this Agreement which can be given
effect without the invalid or unenforceable provision or application and
will not invalidate or render unenforceable such provision or application
in any other jurisdiction.
EXECUTIVE EMPLOYMENT AGREEMENT 12/31/2001 PAGE 12
EXECUTIVE: XXXXXX X. XXXXXX
13.7 This Agreement will be governed and interpreted under the laws of the
United States of America and of the State of
Texas law as applied to
contracts made and carried out in entirely
Texas by residents of that
State.
13.8 No failure on the part of any party to enforce any provisions of this
Agreement will act as a waiver of the right to enforce that provision.
13.9 Termination of the Employment, with or without cause, will not affect the
continued enforceability of this Agreement. 13.10 ____ Section headings
are for convenience only and shall not define or limit the provisions of
this Agreement.
13.11 This Agreement may be executed in several counterparts, each of which is
an original. It shall not be necessary in making proof of this Agreement
or any counterpart hereof to produce or account for any of the other
counterparts. A copy of this Agreement manually signed by one party and
transmitted to the other party by FAX or in image form via email shall be
deemed to have been executed and delivered by the signing party as though
an original. A photocopy of this Agreement shall be effective as an
original for all purposes.
(Continued on next page)
EXECUTIVE EMPLOYMENT AGREEMENT 12/31/2001 PAGE 13
EXECUTIVE: XXXXXX X. XXXXXX
---------------------------------------------------------------------------------------------------------------------
SCHEDULE 1
---------------------------------------------------------------------------------------------------------------------
Effective Date December 31, 2001
---------------------------------------------------------------------------------------------------------------------
Position Senior Vice President and Chief Financial Officer. In addition, if so requested by the
Company's CEO or Board of Directors, the Executive will also serve as an officer or
director of one or more subsidiaries of the Company.
---------------------------------------------------------------------------------------------------------------------
Initial salary $16,666.67 per month (equivalent to $200,000 per year)
---------------------------------------------------------------------------------------------------------------------
On-Target Amount $200,000
---------------------------------------------------------------------------------------------------------------------
Minimum annual vacation 20 days. See Section 4.6.
---------------------------------------------------------------------------------------------------------------------
Specific benefits Reserved parking space
---------------------------------------------------------------------------------------------------------------------
Severance Period A. Upon termination by Company for Cause None
------------------------------------------------------------------------------------------
B. Upon termination by Company None. See Section 5.4.
for Disability
------------------------------------------------------------------------------------------
C. Upon termination by Company 12 months
for any other reason or no reason
------------------------------------------------------------------------------------------
D. If the Executive Resigns for Good Reason 12 months
------------------------------------------------------------------------------------------
E. If the Executive resigns for None
any other reason or no reason
---------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
SCHEDULE 2
--------------------------------------------------------------------------------
SIGNING BONUS
DATE INSTALLMENT PAYMENT
--------------------------------------------------------------------------------
4/30/2002 $204,880.00
--------------------------------------------------------------------------------
7/31/2002 $53,682.50
--------------------------------------------------------------------------------
10/31/2002 $53,313.13
--------------------------------------------------------------------------------
1/31/2003 $52,943.75
--------------------------------------------------------------------------------
4/30/2003 $52,574.38
--------------------------------------------------------------------------------
7/31/2003 $52,205.00
--------------------------------------------------------------------------------
10/31/2003 $51,835.63
--------------------------------------------------------------------------------
1/31/2004 $51,466.25
--------------------------------------------------------------------------------
4/30/2004 $51,096.88
--------------------------------------------------------------------------------
7/31/2004 $50,727.50
--------------------------------------------------------------------------------
10/31/2004 $50,358.13
--------------------------------------------------------------------------------
1/31/2005 $49,988.75
--------------------------------------------------------------------------------
4/30/2005 $49,619.38
--------------------------------------------------------------------------------
TOTAL $824,691.25
--------------------------------------------------------------------------------
EXECUTIVE EMPLOYMENT AGREEMENT 12/31/2001 PAGE 14
EXECUTIVE: XXXXXX X. XXXXXX
THIS AGREEMENT CONTAINS PROVISIONS REQUIRING BINDING ARBITRATION OF DISPUTES,
WHICH HAVE THE EFFECT OF WAIVING EACH PARTY'S RIGHT TO A JURY TRIAL. By signing
this Agreement, the Executive acknowledges that the Executive (1) has read and
understood the entire Agreement; (2) has received a copy of it (3) has had the
opportunity to ask questions and consult counsel or other advisors about its
terms; and (4) agrees to be bound by it.
Executed and effective as of the Effective Date.
BINDVIEW CORPORATION, BY: EXECUTIVE
--------------------------- ---------------------------
Xxxx X. Xxxxxxx, Chairman, Xxxxxx X. Xxxxxx
President, and Chief
Executive Officer
EXECUTIVE EMPLOYMENT AGREEMENT 12/31/2001 PAGE 15
