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EXHIBIT 10.9
EXECUTIVE: XXXXX X. XXXX
BINDVIEW CORPORATION
EXECUTIVE EMPLOYMENT AGREEMENT
THIS 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").
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 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.
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(1) "BindView Corporation" is a registered assumed name of BindView Development
Corporation.
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EXECUTIVE: XXXXX X. XXXX
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 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,
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EXECUTIVE: XXXXX X. XXXX
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 EXECUTIVE BONUS - see Section 4.2.
2.11 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.
2.12 INVENTION means any and all inventions, discoveries, and improvements,
whether or not patentable, along with any and all materials and work
product relating thereto.
2.13 ON-TARGET AMOUNT has the meaning set forth in Schedule 1.
2.14 PERSON means a natural person, corporation, partnership, or other legal
entity, or a joint venture of two or more of the foregoing.
2.15 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;
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EXECUTIVE: XXXXX X. XXXX
(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).
2.16 RESTRICTIONS and RESTRICTION PERIOD - see Section 10.1.
2.17 SCHEDULE 1 means Schedule 1 set forth at the end of this Agreement
above the parties' signatures.
2.18 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.
2.19 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 (or such other Company executive to whom the Executive reports,
as determined by the Chief Executive Officer) 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.
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, the Executive shall
be eligible for a contingent "Executive Bonus" with an annual On-Target
Amount as set forth in Schedule 1 (except that the
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EXECUTIVE: XXXXX X. XXXX
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 amount of the Executive Bonus 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 executives. The Executive Bonus, if any, will be paid at
the same time and in the same manner as the payment of bonuses to other
executives of the Company as determined by the Company in its
discretion.
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 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
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EXECUTIVE: XXXXX X. XXXX
bonus amounts under Section 4.2(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 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 Executive
Bonus, for the fiscal year in which the notice of termination
(including notice of resignation) occurs and for preceding fiscal
years, only as follows:
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PAYMENT OF UNPAID EXECUTIVE
BONUS FOR PRECEDING FISCAL PAYMENT OF UNPAID EXECUTIVE BONUS UNDER
EVENT YEAR(S) SECTION 4.2 FOR THEN-CURRENT FISCAL YEAR
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If Executive is If Executive is
entitled to a not entitled to
Severance Period a Severance
Period
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Executive resigns Only those Executive Bonus Pro-rated, to be None
amounts for preceding fiscal paid by the end of
year(s) that were already first quarter of the
declared as of the date of following fiscal year
notice of resignation. To be (see Note 1)
paid at the same time as to
other Company executives.
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Company terminates All Executive Bonus amounts Pro-rated, to be paid None
for 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
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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 Executive
Bonus for that fiscal year equal to 95% of the 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 Executive
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 on behalf of the
Company by its Chief Executive Officer. 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 any Severance Period.
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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 Except to the extent expressly prohibited by applicable law, 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, in tort, under statutory or
common-law rights, 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.
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
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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 access to pre-existing Confidential Information and
newly-developed Confidential Information commensurate with the
Executive's duties, including but not limited to access to the
Company's email system and other 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 to the
restrictions on his post-termination employment that are set forth in
this Section 10.
(a) The Executive agrees that during the "Restriction Period"
defined in subparagraph (b), unless the Company gives its
prior written consent (in its sole discretion except as
provided below), the Executive will not, directly or
indirectly:
(1) 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;
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(2) 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;
(3) 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
(4) induce or assist any other Person to engage in any of
the activities described in subparagraphs (1) through
(3).
The Executive's obligations not to engage in the activities
described in subparagraphs (1) through (3) are referred to as
the "Restrictions."
(b) The "Restriction Period" will begin on the Effective Date and
will end one (1) year after the later of:
(1) the date of termination of the Employment for any
reason, and
(2) (if the Executive violates one or more of the
Restrictions and the Company brings a legal action
for injunctive or other relief) the date of entry by
a court of competent jurisdiction of a final judgment
enforcing some or all of the Restrictions, either as
written or as modified by the court.
10.2 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. Such release will be the Executive's EXCLUSIVE REMEDY for
any alleged or actual breach of this Agreement by the Company in not
providing such access.
10.3 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 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.
10.4 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.
10.5 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.
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The Executive further acknowledges and agrees that the Restrictions are
fair and reasonable and the result of negotiation.
10.6 If a Tribunal determines that any of the Restrictions is unreasonably
broad or otherwise unenforceable under applicable law (including but
not limited to the Restriction Period being unreasonably long), 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. Such
reformation may include without limitation a reduction in the
Restriction Period.
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. DISPUTE RESOLUTION.
12.1 Except as set forth in Section 12.4 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 (1) early mediation within 30 days
after a written demand for mediation, and (2) if mediation is
unsuccessful, binding arbitration before a single arbitrator, each 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 mediation or arbitration.
12.2 Any 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).
12.3 Unless otherwise agreed by the parties, the Company will pay all
reasonable fees and expenses charged by the mediator, the arbitrator,
and the AAA, but will not pay the Executive's fees or expenses
associated with the mediation or arbitration. If an arbitration occurs,
the arbitrator is hereby directed to take all reasonable measures not
inconsistent with the interests of justice to expedite, and minimize
the cost of, the arbitration proceedings. Judgment upon any award
rendered by an arbitrator may be entered in any court having
jurisdiction.
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12.4 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 mediation or arbitration.
12.5 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.
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.
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13
EXECUTIVE: XXXXX X. XXXX
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)
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14
EXECUTIVE: XXXXX X. XXXX
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SCHEDULE 1
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Effective Date May 31, 2001
---------------------------------------------------------------------------------------------------------------------
Position Vice President and Corporate Controller. 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 $10,416.67 per month (equivalent to $125,000 per year)
---------------------------------------------------------------------------------------------------------------------
On-Target Amount $62,500
---------------------------------------------------------------------------------------------------------------------
Minimum annual vacation 15 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
any other reason or no reason None
---------------------------------------------------------------------------------------------------------------------
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
------------------------------------- -----------------------------
Xxxxxx X. Xxxxxx, Senior Vice Xxxxx X. Xxxx
President and Chief Financial Officer
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