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EXHIBIT 10
BINDVIEW DEVELOPMENT CORPORATION
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") is made between
BindView Development Corporation, a Texas corporation ("the Company"), and
XXXXXXX X. XXXXXXX ("Xxxxxxx"). Unless otherwise indicated, all references to
Sections are to Sections in this Agreement. This Agreement is effective as of
the "Effective Date" set forth in Schedule 1 below.
W I T N E S S E T H:
WHEREAS, the Company desires to obtain the services of
Xxxxxxx, and Xxxxxxx desires to be employed by the Company upon the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises, the
agreements herein contained and other good and valuable consideration, receipt
of which is hereby acknowledged, the parties hereto agree as of the date hereof
as follows:
1. EMPLOYMENT. Subject to (i) the terms and conditions hereinafter set
forth and (ii) the approval of this Agreement and election of Xxxxxxx by the
Company's Board of Directors ("Board"), the Company hereby agrees to employ
Xxxxxxx, and Xxxxxxx hereby agrees to serve the Company, as President and Chief
Executive Officer ("Employment").
2. SCOPE OF EMPLOYMENT.
(a) During the Employment, Xxxxxxx will serve as President and
Chief Executive Officer and, subject to his election in accordance with the
Company's by-laws and with applicable law, as a member of the Board. In that
connection, Xxxxxxx 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; and (iii) perform
such other duties commensurate with his office as the Board of Directors of the
Company may from time-to-time assign to him.
(b) Section 2(a) shall not be construed as preventing Xxxxxxx
from (i) serving on corporate, civic or charitable boards or committees, or (ii)
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 Xxxxxxx 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 Xxxxxxx'x duties hereunder.
3. COMPENSATION AND BENEFITS DURING EMPLOYMENT. During the Employment,
the Company shall provide compensation and benefits to Xxxxxxx as follows.
(a) The Company shall pay Xxxxxxx, subject to the terms and
conditions of this Agreement, a 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 Xxxxxxx.
(b) As additional compensation for services hereunder, Xxxxxxx
shall be entitled to an annual bonus ("Bonus") with an "On-Target Amount" of not
less than the amount set forth in Schedule 1. The actual Bonus amount in any
given year will be determined by and contingent upon the Company's
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achievement of financial performance objectives set by the Company from time to
time for determining payment of bonuses to its senior executives. Each Bonus
will be paid at the same time and in the same manner as the payment of bonuses
to other senior executives of the Company. If the Company in its discretion
makes a partial interim payment of an Bonus for an interim period (e.g., a
quarterly partial payment), any amount so paid will be credited to the Company's
obligation to pay the annual Bonus for that fiscal year. If the sum of such
interim payments in respect of a Bonus, if any, for a given fiscal year exceed
the actual amount of the annual Bonus for that year, Xxxxxxx need not refund the
difference to the Company.
(c) Xxxxxxx shall, upon satisfaction of any eligibility
requirements with respect thereto, be entitled to participate in all employee
benefit plans of the Company, including without limitation 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.
(d) The Company shall maintain for Xxxxxxx the "Specific
Benefits" summarized in Schedule 1, if any.
(e) The Company will reimburse Xxxxxxx for reasonable business
expenses incurred by Xxxxxxx in connection with the Employment in accordance
with the Company's then-current policies and IRS guidelines.
(f) During the Employment Xxxxxxx 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 Xxxxxxx at such times as may be mutually agreed upon by Xxxxxxx and the
Company.
4. POST-EMPLOYMENT COMPENSATION AND BENEFITS. In the event of any
termination of the Employment, by the Company, by Xxxxxxx, or by Xxxxxxx'x
death, the Company and Xxxxxxx will have the following obligations concerning
compensation and benefits.
(a) Any amounts payable under Section 3 which shall have been
earned but not yet paid, including without limitation vacation pay, shall be
paid by the Company to Xxxxxxx.
(b) If the Employment is terminated because of (i) the death
of Xxxxxxx, or (ii) by the Company because of the inability of Xxxxxxx 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 ("Disability"), then the Company will
pay to Xxxxxxx, or to Xxxxxxx'x heirs, assigns, successors-in-interest, or legal
representatives) any and all salary, other benefits or incentive payments
earned, accrued or provided to or by Xxxxxxx under this Agreement, or granted to
Xxxxxxx by the officers and/or board of directors of the Company, through the
date of Xxxxxxx'x death or disability and not already paid. In the event of such
termination, any vesting of Xxxxxxx'x stock options will be in accordance with
the BindView Development Corporation Omnibus Incentive Plan, as it may be
amended by the Board from time to time (the "Plan").
(c) Except for termination under Section 4(b), if the
Employment is terminated (i) by the Company other than for Cause as defined
below, or (ii) by Xxxxxxx with Good Reason as defined below, then Xxxxxxx will
be entitled to the following post-termination benefits.
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(1) Fifty percent (50%) of all unvested options in
the Company's common stock held by Xxxxxxx on the date of termination of the
Employment by the Company or by Xxxxxxx ("Termination Date") shall vest and
become immediately exercisable on the Termination Date; provided, however, that
in the event of a Change of Control as defined below, one hundred percent (100%)
of all unvested options in the Company's common stock held by Xxxxxxx on the
Termination Date shall vest and become immediately exercisable on the
Termination Date.
(2) The Company shall pay Xxxxxxx a separation
payment within 30 days after the Termination Date. The amount of the separation
payment will be either (i) 36 times the average of Xxxxxxx'x monthly base salary
for the 12 months immediately preceding the Termination Date, or such shorter
period over which Xxxxxxx was continuously employed by the Company, or (ii) 12
times the average of Xxxxxxx'x monthly base salary for the 12 months immediately
preceding the Termination Date, or such shorter period over which Xxxxxxx was
continuously employed by the Company, if the vested portion(s) of Xxxxxxx'x
option(s) in the Company's stock have appreciated by at least $10 million, as
defined below. The vested portion(s) of Xxxxxxx'x option(s) in the Company's
stock will be deemed to have appreciated by $10 million if the closing market
price of the Company's publicly-traded stock on the Termination Date (or the
previous trading day if the Termination Date is not a trading day) exceeds a
price that would result in Xxxxxxx making a profit of $10 million (before any
applicable (i) commissions and other costs of sale and (ii) applicable taxes),
if he were to exercise his option(s) as to all vested portion(s) (taking into
account all acceleration of vesting, if any) and sell all resulting shares at
such price, whether or not Xxxxxxx'x option(s) have in fact been exercised as to
such vested portion(s) and whether or not Xxxxxxx has previously sold any shares
as to which the option(s) have in fact been exercised.
HYPOTHETICAL EXAMPLE: Suppose that (i) as of the Termination
Date the vested portions of Xxxxxxx'x options, after all
acceleration of vesting as of the Termination Date, are for 1
million shares of the Company's common stock at a hypothetical
strike price of $80 per share, and (ii) the closing price of
the Company's common stock on the Termination Date was a
hypothetical $92 per share. In that case, the vested portions
of Xxxxxxx'x options in the Company's stock will be deemed to
have appreciated by $12 million (i.e., $92 per share minus $80
per share, times 1 million shares).
(3) The Company shall maintain Xxxxxxx as a
participant in, or provide benefits comparable to those of, the health insurance
benefit plan specified under Section 3(c) for a period of six (6) months after
the Termination Date.
(d) Other than as provided herein, after termination of the
Employment, the Company shall not be obligated to make the payments, nor to
provide the benefits, specified in Section 3.
(e) After termination of the Employment for any reason,
Xxxxxxx shall pay any amount or amounts then owed by Xxxxxxx to the Company.
(f) "Cause" means either (i) the willful commission by Xxxxxxx
of an act constituting a dishonest or other act of material misconduct, or
conviction of a fraudulent act or a felony under the laws of any state or of the
United States to which the Company or Xxxxxxx is subject, and such act results
(or is intended to result directly or indirectly) in Xxxxxxx'x substantial gain
or personal enrichment to the material and demonstrable detriment of the
Company; or (ii) the material breach by Xxxxxxx of any representation or
covenant made herein; or (iii) the commission of repeated breaches of this
Agreement by Xxxxxxx where the Company notifies Xxxxxxx in writing of each such
breach, and prior to termination, the Company
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gives Xxxxxxx thirty (30) days advance written notice of its intention to
terminate the Employment for Cause at the end of such thirty-day period.
Any act, or failure to act, based upon authority
given pursuant to a resolution duly adopted by the Board or based upon the
advice of counsel for the Company shall be conclusively presumed to be done, or
omitted to be done, by Xxxxxxx in good faith and in the best interests of the
Company and thus shall not be deemed grounds for termination for Cause.
(g) "Good Reason" means the occurrence of any of the
following, other than with Xxxxxxx'x prior written consent:
(1) any removal of Xxxxxxx from, or any failure to
reelect or to reappoint Xxxxxxx to, the office of Chief Executive Officer or
Director of the Company;
(2) a reduction by the Company in the amount of
Xxxxxxx'x base salary below the Initial Salary as determined under this
Agreement, or the failure of the Company to pay such base salary to Xxxxxxx at
the time and in the manner specified in Section 3;
(3) the discontinuance by the Company of the annual
bonus referred to in Section 3(b), or the failure of the Company to pay such
bonus to Xxxxxxx at the time and in the manner specified therein; or
(4) the failure by the Company to comply with its
obligations under Section 10(b) (concerning assumption of this Agreement by any
successor or assign of the Company).
(h) A "Change of Control" of the Company shall have occurred
if, after the date hereof:
(i) a report on Schedule 13D or Schedule 14D-1 (or
any successor schedule, form or report) shall be filed with the Commission
pursuant to the Exchange Act and that report discloses that any person (within
the meaning of Section 13(d) or Section 14(d)(2) of the Exchange Act), other
than the Company (or one of its subsidiaries) or any employee benefit plan
sponsored by the Company (or one of its subsidiaries), is the beneficial owner
(as that term is defined in Rule 13d-3 or any successor rule or regulation
promulgated under the Exchange Act), directly or indirectly, of 20 percent or
more of the outstanding Voting Stock;
(ii) any person (within the meaning of Section 13(d)
or Section 14(d)(2) of the Exchange Act), other than the Company (or one of its
subsidiaries) or any employee benefit plan sponsored by the Company (or one of
its subsidiaries), shall purchase securities pursuant to a tender offer or
exchange offer to acquire any Voting Stock (or any securities convertible into
Voting Stock) and, immediately after consummation of that purchase, that person
is the beneficial owner (as that term is defined in Rule 13d-3 or any successor
rule or regulation promulgated under the Exchange Act), directly or indirectly,
of 20 percent or more of the outstanding Voting Stock (such person's beneficial
ownership to be determined, in the case of rights to acquire Voting Stock,
pursuant to paragraph (d) of Rule 13d-3 or any successor rule or regulation
promulgated under the Exchange Act);
(iii) the consummation of:
(x) a merger, consolidation or reorganization of
the Company with or into any other person if (a) the Company is not the
surviving entity or (b) as a result of such merger, consolidation or
reorganization, 50 percent or less of the combined voting power of the
then-outstanding securities
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of such other person immediately after such merger, consolidation or
reorganization are held in the aggregate by the holders of Voting Stock
immediately prior to such merger, consolidation or reorganization;
(y) any sale, lease, exchange or other transfer
of all or substantially all the assets of the Company and its consolidated
subsidiaries to any other person if as a result of such sale, lease, exchange or
other transfer, 50 percent or less of the combined voting power of the
then-outstanding securities of such other person immediately after such sale,
lease, exchange or other transfer are held in the aggregate by the holders of
Voting Stock immediately prior to such sale, lease, exchange or other transfer;
or
(z) a transaction immediately after the
consummation of which any person (within the meaning of Section 13(d) or Section
14(d)(2) of the Exchange Act) would be the beneficial owner (as that term is
defined in Rule 13d-3 or any successor rule or regulation promulgated under the
Exchange Act), directly or indirectly, of more than 50 percent of the
outstanding Voting Stock;
(iv) the stockholders of the Company approve the
dissolution of the Company; or
(v) during any period of 12 consecutive months, the
individuals who at the beginning of that period constituted the Board of
Directors shall cease to constitute a majority of the Board of Directors, unless
the election, or the nomination for election by the Company's stockholders, of
each director of the Company first elected during such period was approved by a
vote of at least a two-thirds of the directors of the Company then still in
office who were directors of the Company at the beginning of any such period.
(i) "Voting Stock" means shares of capital stock of the
Company the holders of which are entitled to vote for the election of directors,
but excluding shares entitled to so vote only upon the occurrence of a
contingency unless that contingency shall have occurred.
5. CONFIDENTIAL INFORMATION.
(a) Xxxxxxx acknowledges that the law provides the Company
with protection for its trade secrets and confidential information. Xxxxxxx will
not disclose, directly or indirectly, any of the Company's confidential business
information or confidential technical information to anyone without
authorization from the Company's management. Xxxxxxx will not use any of the
Company's confidential business information or confidential technical
information in any way, either during or after the Employment with the Company,
except as required in the course of the Employment.
(b) Xxxxxxx will strictly adhere to any obligations that may
be owed to former employers insofar as Xxxxxxx'x use or disclosure of their
confidential information is concerned.
(c) Information will not be deemed part of the confidential
information restricted by this Section 5 if Xxxxxxx can show that: (i) the
information was in Xxxxxxx'x possession or within Xxxxxxx'x knowledge before the
Company disclosed it to Xxxxxxx; or (ii) the information was or became generally
known to those who could take economic advantage of it; or (iii) Xxxxxxx
obtained the information from a party having the right to disclose it to Xxxxxxx
without violation of any obligation to the Company, or (iv) Xxxxxxx is required
to disclose the information pursuant to legal process (e.g., a subpoena),
provided that Xxxxxxx 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 in the previous sentence,
however, whether or not the component parts of the combination are within one or
more
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exceptions, unless the combination itself and its economic value and principles
of operation are themselves within such an exception.
(d) 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 Xxxxxxx
during the Employment are the property of the Company. Upon termination of the
Employment, whether or not for Cause, Xxxxxxx will immediately deliver to the
Company all property of the Company which may still be in Xxxxxxx'x possession.
Xxxxxxx 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.
(e) For a period of one (1) year after the date of termination
of the Employment, Xxxxxxx will not, either directly or indirectly, hire or
employ or offer or participate in offering employment to any person who at the
time of such termination or at any time during such year following the time of
such termination was an employee of the Company without the prior written
consent of the Company.
6. OWNERSHIP OF INTELLECTUAL PROPERTY. The following provisions apply
except to the extent expressly stated otherwise in Schedule 1.
(a) The Company will be the sole owner of any and all of
Xxxxxxx'x Inventions that are related to the Company's business, as defined in
more detail below.
(b) For purposes of this Agreement, "Inventions" means all
inventions, discoveries, and improvements (including, without limitation, any
information relating to manufacturing techniques, processes, formulas,
developments or experimental work, work in progress, or business trade secrets),
along with any and all other work product relating thereto.
(c) An Invention is "related to the Company's business"
("Company-Related Invention") if it is made, conceived, or reduced to practice
by Xxxxxxx (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 it either: (i) involves equipment,
supplies, facilities, or trade secret information of the Company; (ii) involves
the time for which Xxxxxxx was or is to be compensated by the Company; (iii)
relates to the business of the Company or to its actual or demonstrably
anticipated research and development; or (iv) results, in whole or in part, from
work performed by Xxxxxxx for the Company.
(d) Xxxxxxx will promptly disclose to the Company, or its
nominee(s), without additional compensation, all Company-Related Inventions,
including without limitation all "Computer Software" (defined as all computer
programs, associated documentation, and copies thereof) that is so related.
(e) Xxxxxxx will assist the Company, at the Company's expense,
in protecting any intellectual property rights that may be available anywhere in
the world for such Company-Related Inventions, including signing U.S. or foreign
patent applications, oaths or declarations relating to such patent applications,
and similar documents.
(f) To the extent that any Company-Related Invention is
eligible under applicable law to be deemed a "work made for hire," or otherwise
to be owned automatically by the Company, it will be deemed as such, without
additional compensation to Xxxxxxx. In some jurisdictions, Xxxxxxx may have a
right, title, or interest ("Right," including without limitation all right,
title, and interest arising under patent law, copyright law, trade-secret law,
semiconductor chip protection law, or otherwise, anywhere in the world,
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including the right to xxx for present or past infringement) in certain
Company-related Inventions that cannot be automatically owned by the Company. In
that case, if applicable law permits Xxxxxxx to assign Xxxxxxx'x Right(s) in
future Company-Related Inventions at this time, then Xxxxxxx hereby assigns any
and all such Right(s) to the Company, without additional compensation to
Xxxxxxx; if not, then Xxxxxxx agrees to assign any and all such Right(s) in any
such future Company-Related Inventions to the Company or its nominee(s) upon
request, without additional compensation to Xxxxxxx.
(g) To the extent that Xxxxxxx retains any so-called "moral
rights" or similar rights in a Company-Related Invention as a matter of law,
Xxxxxxx authorizes the Company or its designee to make any changes it desires to
any part of that Company-Related Invention; to combine any such part with other
materials; and to withhold Xxxxxxx'x identity in connection with any business
operations relating to that Company-Related Invention; in any case without
additional compensation to Xxxxxxx.
7. NONCOMPETITION. As a condition to, and in consideration of, the
Company's entering into this Agreement, and giving Xxxxxxx access to certain
confidential and proprietary information, which Xxxxxxx recognizes is valuable
to the Company and, therefore, its protection and maintenance constitutes a
legitimate interest to be protected by the provisions of this Section 7 as
applied to Xxxxxxx and other employees similarly situated to Xxxxxxx, Xxxxxxx
hereby agrees as follows:
(a) During, and for "a reasonable period of time" after any
termination of, the Employment, and within "a reasonable territory," defined in
Sections 7(b) and 7(c), Xxxxxxx will not for any reason, directly or indirectly,
by any means or device, for himself or on behalf of or in conjunction with any
person, partnership or corporation (i) compete with the Company in the
development or marketing of systems-management and/or security-management
software products which manage distributed client/server networks operating in
the Microsoft Windows NT, Novell NetWare, or UNIX (including without limitation
LINUX) environments, (ii) solicit any customers of the Company to purchase the
products or services which, as of the date of such termination, would compete
directly or indirectly, with those which were offered by the Company or were
reasonably foreseeable to be offered by the Company during such period of time
or (iii) work on or develop, directly or indirectly, for any competitor of the
Company any programs or software similar to those developed or sold by the
Company during Xxxxxxx'x Employment. The aforementioned period of time specified
in this paragraph will be extended by the duration of any period when Xxxxxxx is
committing any act prohibited by this Agreement.
(b) As used in this Agreement, "a reasonable period of time"
means one year, except as otherwise provided herein. If Xxxxxxx violates the
covenants set forth in Section 7(a), and the Company brings an action for
injunctive or other relief, the Company shall not be deprived of the benefit of
the full reasonable period of time. Accordingly, the covenants set forth in the
preceding paragraph shall be deemed to have a duration of the reasonable period
of time specified by this Agreement, with such period commencing upon the later
of (i) the termination of the Employment and (ii) if the Company brings a action
to enforce the covenants contained in Section 7(a), the date of entry by a court
of competent jurisdiction of a final judgment enforcing such covenants.
(c) As used in this Agreement, "a reasonable territory", in
view of the international nature of the markets in which the Company competes,
means the United States of America and any foreign market in which the Company's
products are sold during the Employment or are reasonably foreseeable to be sold
during the reasonable period of time.
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(d) The covenants set forth in Section 7(a) will accrue to the
benefit of the Company, regardless of the reason(s) for the termination of the
Employment; provided, however, that in the event of a termination of employment
of Xxxxxxx following a Change of Control or for Good Reason, the term
"reasonable period of time" will mean six (6) months.
(e) Xxxxxxx acknowledges that the obligations of this
Agreement are directly related to the Employment and are necessary to protect
the Company's legitimate business interests. Xxxxxxx acknowledges that the
Company's need for the covenants set forth in this Agreement is based on the
following: (i) the substantial time, money and effort expended and to be
expended by the Company in developing technical designs, computer program source
codes, marketing plans and similar confidential information; (ii) the fact that
Xxxxxxx will be personally entrusted with the Company's confidential and
proprietary information; (iii) the fact that, after having access to the
Company's technology and other confidential information, Xxxxxxx could become a
competitor of the Company; and (iv) the highly competitive nature of the
Company's industry, including the premium that competitors of the Company place
on acquiring proprietary and competitive information.
(f) Notwithstanding the foregoing, Xxxxxxx may acquire an
ownership interest, directly or indirectly, of not more than 5% of the
outstanding securities of any corporation which is engaged in a business
competitive with the Company and 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 Xxxxxxx devoting time to the management or operations of such
corporation.
8. EMPLOYEE HANDBOOKS, ETC. From time to time, the Company may
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. Such
manuals, handbooks and statements do not constitute a part of this Agreement nor
a separate contract, but are intended only for general guidance.
9. LEGAL FEES AND EXPENSES. In the event of a lawsuit, arbitration, or
other dispute-resolution proceeding between the Company and Xxxxxxx arising out
of or relating to this Agreement, the prevailing party, in the proceeding as a
whole and/or in any interim or ancillary proceedings (e.g., opposed motions,
including without limitation motions for preliminary or temporary injunctive
relief) will be entitled to recover its reasonable attorneys' fees and expenses
unless the court or other forum determines that such a recovery would not serve
the interests of justice.
10. SUCCESSORS.
(a) This Agreement shall inure to the benefit of and be
binding upon (i) the Company and its successors and assigns and (ii) Xxxxxxx and
Xxxxxxx'x heirs and legal representatives, except that Xxxxxxx'x duties and
responsibilities under this Agreement are of a personal nature and will not be
assignable or delegable in whole or in part.
(b) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement, "the Company" shall mean the Company
as hereinbefore defined and any successor to its
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business and/or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law, or otherwise.
11. ARBITRATION.
(a) Except as set forth in paragraph (b) of this Section 11 or
to the extent prohibited by applicable law, any dispute, controversy or claim
arising out of or relating to this Agreement 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 in
effect on the date of the demand for arbitration. The arbitration shall take
place before a single arbitrator, who will preferably but not necessarily be a
lawyer but who shall 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 Xxxxxxx'x principal office
space is located at the time of the dispute or was located at the time of
termination of the Employment (if applicable). 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.
(b) To protect Inventions, trade secrets, or other
confidential information, and/or to enforce the noncompetition provisions of
Section 7, the Company may seek temporary, preliminary, and/or permanent
injunctive relief in a court of competent jurisdiction, in each case, without
waiving its right to arbitration.
(c) 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.
(d) Judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction.
12. CERTAIN REDUCTION OF PAYMENTS BY THE COMPANY.
(a) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any payment, benefit
or distribution by the Company or its affiliates to or for the benefit of
Xxxxxxx (whether paid or payable or distributed or distributable pursuant to the
terms of this Agreement or otherwise) (a "Payment") would be nondeductible by
the Company or any of its affiliates for federal income tax purposes because of
Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), then
the aggregate present value of amounts payable or distributable to or for the
benefit of Xxxxxxx pursuant to this Agreement (such payments or distributions
pursuant to this Agreement are hereinafter referred to as "Agreement Payments")
shall be reduced to the Reduced Amount. The "Reduced Amount" shall be an amount
expressed in present value which maximizes the aggregate present value of
Agreement Payments without causing any Payment to be nondeductible by the
Company or any of its affiliates because of Section 280G of the Code. For
purposes of this Section 12, present value shall be determined in accordance
with Section 280G(d)(4) of the Code.
(b) All determinations required to be made under this Section
12 shall be made by PricewaterhouseCoopers LLP (the "Accounting Firm"), which
shall provide detailed supporting calculations both to the Company and Xxxxxxx
within 20 business days after the Termination Date (or such earlier or other
time as is requested by the Company) and an opinion to Xxxxxxx that he has
substantial authority not to report any excise tax imposed under section 4999 of
the Code on his federal income tax return with
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respect to the Agreement Payments (as eliminated or reduced, if applicable,
under such initial determination). Any such determination by the Accounting Firm
shall be binding upon the Company and Xxxxxxx. If the Agreement Payments are to
be eliminated or reduced under such initial determination, Xxxxxxx shall
determine which and how much of the Agreement Payments shall be eliminated or
reduced consistent with the requirements of this Section 12, provided that, if
Xxxxxxx does not make such determination within ten business days of the receipt
of the calculations made by the Accounting Firm, the Company shall elect which
and how much of the Agreement Payments shall be eliminated or reduced consistent
with the requirements of this Section 12 and shall notify Xxxxxxx promptly of
such election. Within five business days thereafter, the Company shall pay to or
distribute to or for the benefit of Xxxxxxx such amounts as are then due to
Xxxxxxx under this Agreement.
(c) As a result of the uncertainty in the application of
Section 280G of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Agreement Payments will have been
made by the Company which should not have been made ("Overpayment") or that
additional Agreement Payments which will not have been made by the Company could
have been made ("Underpayment"), in each case, consistent with the calculations
required to be made hereunder. In the event that the Accounting Firm, based upon
the assertion of a deficiency by the Internal Revenue Service against Xxxxxxx
which the Accounting Firm believes has a high probability of success determines
that an Overpayment has been made, any such Overpayment paid or distributed by
the Company to or for the benefit of Xxxxxxx shall be treated for all purposes
as a loan ab initio to Xxxxxxx which Xxxxxxx shall repay to the Company together
with interest at the applicable federal rate provided for in Section 1274(d) of
the Code; provided, however, that no such loan shall be deemed to have been made
and no amount shall be payable by Xxxxxxx to the Company if and to the extent
such deemed loan and payment would not either reduce the amount on which Xxxxxxx
is subject to tax under Section 1 and Section 4999 of the Code or generate a
refund of such taxes. If the Accounting Firm, based upon controlling precedent
or other substantial authority, determines that an Underpayment has occurred,
any such Underpayment shall be promptly paid by the Company to or for the
benefit of Xxxxxxx together with interest at the applicable federal rate
provided for in Section 1274(d) of the Code.
13. OTHER PROVISIONS.
(a) Xxxxxxx represents that, except for an Invention and
Non-Disclosure Agreement with BMC Software, Inc. which has previously been
provided to the Company, he has no obligations, contractual or otherwise,
inconsistent with Xxxxxxx'x obligations set forth in this Agreement.
(b) All notices and statements with respect to this Agreement
must be in writing. Notices to the Company shall be delivered to the Chairman of
the Board or any vice president of the Company. Notices to Xxxxxxx may be
delivered to Xxxxxxx in person or sent to Xxxxxxx'x then-current home address as
indicated in the Company's records.
(c) 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.
(d) 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.
(e) 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
11
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.
(f) 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 Texas by residents of Texas.
(g) 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.
(h) Termination of the Employment, with or without cause, will
not affect the continued enforceability of this Agreement.
(i) Section headings are for convenience only and shall not
define or limit the provisions of this Agreement.
(j) 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 signed by one party and FAXed to another
party 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.
Executed to be effective as of the Effective Date.
BINDVIEW DEVELOPMENT CORPORATION, BY: EMPLOYEE
By: /s/ XXXX X. XXXXXXX By: /s/ XXXXXXX X. XXXXXXX
----------------------- ---------------------------
Xxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxx
Chairman of the Board
