Exhibit 10.68
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EMPLOYMENT AGREEMENT
EMPLOYEE: XXXX XXXXX
EMPLOYMENT AGREEMENT, made as of this 9th day of May, 1995 ("Employ-
ment Agreement"), between Cheyenne Software, Inc., a Delaware corporation (the
"Corporation" or "Cheyenne") with its principal place of business at Three
Xxxxxxxxxx Xxxxx, Xxxxxx Xxxxxxx, Xxx Xxxx 00000, and XXXX XXXXX, an individual
residing at 0000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, (the "Employee").
WHEREAS, prior to the date of this Employment Agreement Employee has
served as the President of Cheyenne's wholly-owned subsidiary, Cheyenne Com-
munications, Inc. ("CheyComm"), pursuant to an Employment Agreement dated
September 29, 1993 (the "Cheycomm Employment Agreement") and the parties hereto
desire to terminate the Cheycomm Employment Agreement;
WHEREAS, the Employee has substantial experience as a software
developer and marketer; and
WHEREAS, the Employee and Cheyenne (on behalf of Cheycomm as well as
itself) desire to terminate the Cheycomm Employment Agreement, Employee desires
to be
employed by the Corporation as Executive Vice President upon the terms and
conditions hereinafter set forth, and the Corporation desires that the Employee
be employed as its Executive Vice President.
NOW THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the parties, intending to be
legally bound, agree as follows:
1. Term of Employment. The Corporation hereby agrees to employ the
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Employee as Executive Vice President, and the Employee hereby agrees to serve
the Corporation in such capacity for the period commencing on the date hereof
(the "Effective Date") and ending on the third (3rd) anniversary of the Effec-
tive Date (the "Employment Period"), unless sooner terminated as hereinafter
provided.
2. Scope of Duties. The Employee shall serve as Executive Vice
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President of the Corporation, General Manager - Netware Division, and shall
assist in the operation of the Corporation, which shall include, but shall not
be limited to the sale, promotion and development of the products and business
of the Corporation. In addition, the Employee shall perform such other duties
as the President of the Corporation may assign to the Employee from time to
time. The Employee shall report and be responsible to the President of the
Corporation or to such other person or persons designated by the Corporation's
Board of Directors.
3. Time to be Devoted to Employment. The Employee, except during
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vacation periods or absences due to temporary illness, shall devote his full
professional and business time, attention, and energies to his duties and
responsibilities hereunder, and except for business trips which shall be
necessary or desirable in the Corporation's business, shall render such services
at the principal office of the Corporation. Nothing contained herein shall
prevent or be construed as preventing the Employee from holding or purchasing up
to five percent (5%) or less of any class of stock or securities of a cor-
poration which is listed on a national securities exchange or regularly traded
in the over-the-counter market, or making other investments or participating in
business ventures not in competition with the business of the Corporation;
provided, such investments and business ventures do not require any time during
normal business hours and do not conflict with his duties or obligations to the
Corporation as provided in this Employment Agreement.
4. Direct Compensation.
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In consideration for services to be rendered by the Employee
hereunder during the Employment Period:
(a) The Employee shall receive a salary at the rate of One
Hundred Eighty Thousand Dollars ($180,000) per annum ("Base Salary"), which Base
Salary shall be subject to federal, state, and other tax withholdings, and which
shall be paid semi-monthly in arrears or on such other basis as other employees
of the Corporation generally are paid;
(b) The Corporation shall pay to or for the account of the
Employee (as the Corporation may determine) during each twelve (12) month period
falling within the Employment Period, a sum not to exceed $2,562, payable in
twelve (12) equal monthly
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installments in arrears on the last day of each month, representing the payment
of a portion of the premiums on New England Mutual Life Insurance Company Policy
No. 8714531 on the life of the Employee; and
(c) The Corporation shall pay to or for the account of the
Employee (as the Corporation may determine) during each twelve (12) month period
falling within the Employment Period, a sum not to exceed $5,585, payable in
twelve (12) equal monthly installments in arrears on the last day of each month,
representing the payment of a portion of the premiums on Provident Life and
Casualty Company Disability Policy No. 00-000-0000000 (including the Non-
Disabling Injury Rider).
(d) The Corporation shall reimburse the Employee in an amount
equal to Three Thousand Six Hundred Dollars ($3,600) per annum for automobile
expenses incurred by the Employee in connection with the business of the
Corporation, payable at the sole option of the Corporation, in twelve (12) equal
installments in arrears, on the first day of each month, or in twenty-four (24)
equal installments in arrears on the first and fifteenth day of each month.
(e) The Employee shall be eligible to receive additional
payments or bonuses as may be determined, in the sole discretion of the Cor-
poration's Board of Directors. However, nothing contained in this Section shall
obligate the Board of Directors to approve such additional payments or bonuses
for the Employee.
5. Fringe Benefits. The Employee shall be entitled to participate
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in any and all fringe benefits and/or plans (except for life insurance benefits
and/or plans or disability
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income benefits and/or plans, which benefits and/or plans have been provided to
Employee under Section 4(b) and 4(c) above), generally afforded to other
executives of the Corporation (to the extent the Employee otherwise qualifies
therefor under the specific terms and conditions of each such benefit or plan),
including, without limitation, medical insurance and pension plans (401K) which
are, or which may become available generally to senior management of the
Corporation. The Employee shall be entitled to four (4) weeks vacation during
each year of the Employment Period, to be taken at such time or times as the
reasonable needs of the Corporation's business shall allow.
6. Termination of Cheycomm Employment Agreement; Waiver and Release
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of Cheycomm; Cheyenne Options.
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(a) The Cheycomm Employment Agreement is hereby terminated and no
party thereunder shall have any continuing rights, duties or obligations
thereunder. Cheycomm shall be deemed to be a third party beneficiary of this
Section 6(a).
(b) As a concurrent condition to the effectiveness of this Employment
Agreement, Employee shall have executed and delivered the Waiver and Release
Agreement in the form annexed to this Employment Agreement as Exhibit A.
(c) Employee hereby acknowledges receipt of an option certificate
evidencing his option to purchase up to 240,000 shares of Cheyenne common stock,
par value $.01 per share issued to him pursuant to the Cheyenne Software, Inc.
1987 Non-Qualified Stock Option Plan.
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7. Termination of Employment. During the Employment Period, the
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Employee's employment may be terminated by the Board of Directors of the
Corporation, on the occurrence of any one or more of the following events:
(a) The death of the Employee;
(b) The failure by the Employee to substantially perform his
duties and responsibilities hereunder, owing to physical or mental incapacity
(hereinafter referred to as "disability"), which disability shall continue for
more than four (4) consecutive months or an aggregate of more than six (6)
months in any twelve (12) consecutive months; or
(c) For "Cause", which shall mean:
(i) the willful failure by the Employee to substantially
perform his duties hereunder (including the breach of
any provision of Section 9 and/or 10 hereof), for
reasons other than death or disability;
(ii) the willful engaging by the Employee in misconduct
materially injurious to the Corporation; or
(iii) the commission by the Employee of an act
constituting common law fraud or a felony against
the Corporation.
8. Death Benefit; Severance.
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(a) (i) In addition to all other insurance and similar death
benefits generally made available to employees of the
Corporation, if the Employee's employment is terminated
upon the occurrence of the death of the Employee as
provided under Section 7(a) hereof, the Corporation
shall provide a death benefit to the estate of the
Employee equal to one hundred (100%) percent of the
Employee's then current annual Base Salary at the date
of death. Such death benefit shall be payable as may
be determined by the Corporation, but not less than
twelve (12) equal monthly installments, payable on the
last day of each month, commencing in the month subse-
quent to the month in which the death occurs.
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(ii) In addition to all other insurance and similar
disability benefits generally made available to
employees of the Corporation, if the Employee's
employment is terminated upon the occurrence of the
disability of the Employee as provided under Section
7(b) hereof, the Corporation agrees to pay to the
Employee the sum of $31,250, in three equal monthly
installments of $10,416.66 each, payable on the last
day of each month commencing in the month which is
subsequent to the month in which the termination oc-
curs.
(iii) The Corporation also agrees to continue to provide
all other fringe benefits contained in Section 5
for a period of three months from the termination
date, so long as such benefits were actually ob-
tained by the Employee prior to the Employee's
death or disability, and continue to be obtainable
by the Employee.
(b) If the Corporation and the Employee do not enter into a renewal
agreement to be effective May 9, 1998, for a period of at least two (2) years
and containing similar terms and conditions to those set forth herein, then the
Corporation will pay the Employee, as additional compensation, an amount equal
to one hundred (100%) percent of the Employee's then current annual Base Salary,
payable semi-monthly in arrears, for the twelve (12) months ending May 9, 1998;
such additional compensation is hereinafter referred to as the "Payment".
Notwithstanding the immediately preceding sentence, the Employee will not
receive the Payment if:
(i) the Corporation declines to enter into a renewal agreement
with the Employee because the Employee breached the con-
fidentiality and/or non-compete provisions of this
Employment Agreement or any other terms or conditions of his
employment;
(ii) the Employee has been terminated for Cause hereunder; or
(iii) the Employee declines to enter into a renewal agreement
with the Corporation, and the Corporation has offered a
renewal agreement for a period of not less than two (2)
years, containing similar terms and conditions as dis-
cussed in this Employment Agreement.
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9. Disclosure of Information. All memoranda, notes, records, or
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other documents made or compiled by the Employee or made available to him during
the term of his employment concerning the business of the Corporation or any
affiliate of the Corporation, shall be the Corporation's property and shall be
delivered to the Corporation on the termination of the Employee's employment.
The Employee shall not use for himself or others, or divulge to others, any
proprietary or confidential information of the Corporation, obtained by him as a
result of his employment, unless authorized by the Corporation. For purposes of
this Section 9, the term "proprietary or confidential information" shall mean
all information which is known only to the Employee or to the Employee and the
employees, former employees, consultants, or others in a confidential relation-
ship with the Corporation, and relates to specific matters such as trade
secrets, customers, potential customers and vendor lists, pricing and credit
techniques, programs, source codes, program codes, software design know-how,
research and development activities, private processes, and books and records,
as they may exist from time to time, which the Employee may have acquired or
obtained by virtue of work heretofore or hereafter performed for or on behalf of
the Corporation or which he may acquire or may have acquired knowledge of during
the performance of said work, and which is not known to others, or readily
available to others from sources other than the Employee or officers or other
employees of the Corporation, or is not in the public domain. In the event of a
breach or a threatened breach by the Employee of the provisions of this Section
9, the Corporation shall be entitled to an injunction, without being required to
post any bond, restraining the Employee from disclosing, in whole or in part,
the aforementioned proprietary or confidential information of the
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Corporation, or from rendering any services to any person, firm, corporation,
association, or other entity to whom such proprietary or confidential infor-
mation, in whole or in part, has been disclosed or is threatened to be
disclosed. Nothing contained herein shall be construed as prohibiting the
Corporation from pursuing any other remedies available to the Corporation for
such breach or threatened breach, including the recovery of damages from the
Employee.
10. Restrictive Covenants.
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(a) The Employee hereby acknowledges and recognizes the highly
competitive nature of the Corporation's business and accordingly agrees that, in
consideration of the premises contained herein, from and after the date hereof
and during the Employment Period, until the Designated Date (as hereinafter
defined), he shall not:
(i) directly or indirectly engage in any Competitive Ac-
tivity (as hereinafter defined), whether such
engagement shall be as an officer, director, employee,
consultant, agent, lender, stockholder (except as
permitted by Section 3 hereto), or other participant;
or
(ii) assist others in engaging in Competitive Activity.
As used herein, the term "Competitive Activity" shall mean
and include the development and/or marketing of computer hardware and/or
software for server-based local area network (LAN) and enterprise wide ap-
plications, including but not limited to storage management, data
management/monitoring, data security and data communications.
(b) As used in this Section 10, the "Designated Date" shall mean
the following:
(i) if the Employee willfully terminates his employment
with the Corporation in violation of this Employment
Agreement
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and prior to the expiration of the Employment Period,
then the "Designated Date" shall mean the second (2nd)
anniversary of the effective date of such termination;
(ii) if the Corporation terminates the employment of the
Employee under this Employment Agreement for "Cause"
(as defined in Section 7 herein), then the "Designated
Date" shall be the second (2nd) anniversary of the
effective date of such termination; or
(iii) if during the Employment Period, the Corporation
terminates the employment of the Employee without
cause, then the term "Designated Date" shall mean
the effective date of such termination.
(c) It is the desire and intent of the parties that the
provisions of this Section 10 shall be enforced to the fullest extent permis-
sible under the laws and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, if any particular provision of this Section
10 shall be adjudicated to be invalid or unenforceable, such provision of this
Section 10 shall be deemed amended to delete therefrom the portion thus ad-
judicated to be invalid or unenforceable, such deletion to apply only with
respect to the operation of such provisions of this Section 10 in the particular
jurisdiction in which such adjudication is made. In addition, if the scope of
any restriction contained in this Section 10 is too broad to permit enforcement
thereof to its fullest extent, then such restriction shall be enforced to the
maximum extent permitted by law, and the Employee hereby consents and agrees
that such restriction shall be enforced to the maximum extent permitted by law,
and the Employee hereby consents and agrees that such scope may be judicially
modified accordingly in any proceeding brought to enforce such restriction.
(d) With respect to Inventions (as hereinafter defined,
including, but not limited to, software) made or conceived by the Employee,
whether or not during the hours
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of his employment or with the use of the Corporation's facilities, materials, or
personnel, either solely or jointly with others during the Employee's employment
by the Corporation, or within one (1) year after termination of such employment,
or within two (2) years after termination of such employment if such termination
is based on or related to unauthorized use or disclosure of proprietary or
confidential information obtained by the Employee as a result of his employment
and without the payment to the Employee of a royalty or any other consideration:
(i) The Employee shall inform the Corporation promptly and
fully of such Inventions by written report, setting
forth in detail the procedures employed and results
achieved. A report shall be submitted by the Employee
upon completion of any studies or research projects
undertaken on the Corporation's behalf, whether or not
in the Employee's opinion a given project has resulted
in an Invention.
(ii) At the Corporation's request and expense, the Employee
shall apply for the United States and/or foreign let-
ters patent or other registrations, including, but not
limited to, copyrights (collectively, the "Other
Registrations"), either in the Employee's name or
otherwise, as the Corporation shall desire.
(iii) The Employee hereby assigns and agrees to assign
to the Corporation all of his right and interest
to any and all such Inventions and to make ap-
plications for United States and/or foreign let-
ters patent or Other Registrations granted upon
such Inventions.
(iv) The Employee shall acknowledge and deliver promptly to
the Corporation, without charge to the Corporation, but
at its expense, such written instruments and do such
other acts in support of his inventorship as may be
necessary in the opinion of the Corporation to obtain
and maintain United States and/or foreign letters
patent or Other Registrations, and to vest the entire
right in such Inventions, patents, patent applications,
and Other Registrations in the Corporation.
(v) The Corporation shall also have the royalty-free right
to
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use in its business, and to make, use, and sell
products and/or services derived from any Inventions,
discoveries, concepts, and ideas, whether or not paten-
table or copyrightable, including, but not limited to,
applications, methods, formulas, and techniques, as
well as improvements or know-how, whether or not within
the scope of Inventions, but which are obtained,
created, or made by the Employee during the Employment
Period or with the use or assistance of the Cor-
poration's facilities, materials, or personnel.
(vi) For the purposes of this Agreement, "Inventions" mean
discoveries, concepts, and ideas, whether or not paten-
table or copyrightable, including, but not limited, to
processes, methods, formulas, and techniques, as well
as improvements or know-how concerning any present or
prospective activities of the Corporation which the
Employee has become acquainted as a result of his
employment by the Corporation or any related work
product of any kind.
(e) In the event of a breach or threatened breach by the
Employee of the provisions of this Section 10, the Corporation shall be entitled
to an injunction and such other equitable relief as may be necessary or
desirable to enforce the restrictions contained herein. Nothing herein con-
tained shall be construed as prohibiting the Corporation from pursuing any other
remedies available for such breach or threatened breach or any other breach of
this Employment Agreement.
(f) Employee hereby warrants and represents that he is not
prohibited by any agreement or the order of any court from entering into and
carrying out the terms of this Agreement. In particular, the Employee warrants
and represents that the scope of his activity is not restricted in any way with
respect to the design, development, enhancement, sale, marketing, and/or
promotion of computer software and hardware.
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11. Notices.
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(a) All notices required or permitted to be given under the
provisions of this Employment Agreement shall be in writing and delivered
personally or by certified or registered mail, return receipt requested, postage
prepaid, to the following persons at the following addresses, or to such other
persons at such other addresses as any party may request by notice in writing to
the other party to this Agreement.
If to Employee:
Xx. Xxxx Xxxxx
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
If to the Corporation:
Cheyenne Software, Inc.
Three Xxxxxxxxxx Xxxxx
Xxxxxx Xxxxxxx, XX 00000
Attn: General Counsel
With a copy to:
Xxxxxxx X. Xxxxxx, Esq.
Xxxxxxxx Xxxxx Singer & Xxxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
(b) Construction. This Employment Agreement shall be construed
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with, and be governed by, the laws of the State of New York for contracts
entered into and to be performed in New York, without regard to principles of
conflicts of law.
(c) Successors and Assigns. This Employment Agreement shall be
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binding upon the successors and assigns of the Corporation, and shall inure to
the benefit of and be enforceable by and against its successors and assigns.
This Employment Agreement is
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personal in nature and may not be assigned or transferred by the Employee
without the prior written consent of the Corporation.
(d) Representations. Employee represents and warrants that he
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has no written contract with his former employer, employers or their affiliates
that would impair or otherwise interfere with Employee's entering into this
Agreement and performing his contemplated duties hereunder, and the parties
agree that this Agreement and all other agreements entered into in reliance upon
the validity of this Agreement have been entered into on the assumption and
belief of the parties that Employee's performance of his contemplated services
hereunder is not prohibited or restricted by any existing agreement with
Employee's former employer, employers, or their affiliates.
(e) Entire Agreement. This instrument contains the entire
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understanding and agreement between the parties relating to the subject matter
hereof, and neither this Employment Agreement nor any provision hereof may be
waived, modified, amended, changed, discharged, or terminated, except by an
agreement in writing signed by the party against whom enforcement of any waiver,
modification, change, amendment, discharge, or termination is sought.
(f) Counterparts. This Employment Agreement may be executed
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simultaneously in counterparts, each of which shall be deemed an original, and
all of which counterparts shall together constitute a single agreement.
(g) Illegality. If any one or more of the provisions of this
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Employment Agreement shall be invalid, illegal, or unenforceable in any respect,
the validity, legality, and
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enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby.
(h) Captions. The captions of the sections hereof are for
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convenience only and shall not control or affect the meaning or construction of
any of the terms or provisions of this Employment Agreement.
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IN WITNESS WHEREOF, the parties hereto have set their hands and
executed this Agreement on the 8th day of June, 1995.
CHEYENNE SOFTWARE, INC.
By:/s/ XxxXxxx Xxxx
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XxxXxxx Xxxx, President and
Chief Executive Officer
/s/ Xxxx Xxxxx
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Xxxx Xxxxx
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