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EXHIBIT 10.13
EMPLOYEE AGREEMENT
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT DESCRIBES THE BASIC LEGAL
AND ETHICAL RESPONSIBILITIES THAT YOU ARE REQUIRED TO OBSERVE AS AN EMPLOYEE
EXPOSED TO HIGHLY SENSITIVE TECHNOLOGY AND STRATEGIC INFORMATION IN PERFORMING
YOUR DUTIES AT BINDVIEW DEVELOPMENT CORPORATION. BINDVIEW DEVELOPMENT
CORPORATION BELIEVES THAT THIS AGREEMENT STRIKES A FAIR BALANCE BETWEEN ITS
INTERESTS AND THE EMPLOYEE'S NEEDS AND EXPECTATIONS. THIS AGREEMENT IS LONG
BECAUSE AN EFFORT HAS BEEN MADE TO PROTECT BOTH YOU AND BINDVIEW DEVELOPMENT
CORPORATION BY BEING AS CLEAR AND PRECISE AS POSSIBLE.
The Terms and Conditions of this Agreement are listed below, effective as of
the date shown below, by and between employer, BINDVIEW DEVELOPMENT CORPORATION
("BINDVIEW") and Xxxxx Xxxxxxx ("Employee"), as employee:
1.0 COMPENSATION AND BENEFITS
Employee's compensation shall be as provided in Appendix A to this
Agreement, or as otherwise agreed by the parties in writing from time
to time. However, the parties expressly agree that Appendix A is not
otherwise a part of this Agreement, and that this Agreement
constitutes the sole and entire agreement of the parties.
2.0 SCOPE OF DUTIES
2.1 EMPLOYMENT BY BINDVIEW AS SOLE OCCUPATION. Employee agrees to
devote substantially all of Employee's business time,
attention, skill, and effort to the performance of the duties
that BINDVIEW may assign Employee from time to time.
It is the policy of BlNDVIEW never to allow its personnel to
work for any competitive enterprise during their employment,
including after hours, on weekends, or during vacation time,
even if only organizational assistance or limited consultation
is involved.
2.2 NONINTERFERENCE WITH THIRD-PARTY RIGHTS. Employee warrants
and represents that, in entering into this Agreement and
performing the obligations imposed by this Agreement, Employee
is not violating any contractual, fiduciary, or other legal
duty which Employee may owe to some other person, and that
only BINDVIEW is entitled to the benefit of the Employee's
work. BINDVIEW has no interest in using any other person's
patents, copyrights, trade secrets, or trademarks in an
unlawful manner. Employee agrees that Employee will not
misapply proprietary rights of other persons by accepting
employment with BINDVIEW or in the course of his/her
employment with BINDVIEW.
2.3 CONTINUANCE OF EMPLOYMENT. Employee will give at least two
weeks' notice in
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advance of any termination by Employee of employment. Under
applicable Texas law, an employee may normally be terminated
without notice and without cause. In exchange for Employee's
promises in this Agreement, BINDVIEW agrees that it will only
terminate Employee's employment as follows:
A. For Cause. BINDVIEW may terminate your employment
for cause. The following shall constitute cause:
1. Any misconduct which BINDVIEW deems unethical
or detrimental to BINDVIEW's legitimate
interests;
2. Conviction by final action of any court of
any offense punishable as a felony or
involving moral turpitude;
3. Any unreasonable failure to perform assigned
duties;
4. The death of Employee or the insolvency of
BINDVIEW; and
5. For any breach of this Agreement
In the case of a termination for cause, BINDVIEW
shall have no further obligation to Employee except
as provided in this Agreement, in any applicable law,
or under the terms of any benefit plan sponsored by
BINDVIEW in which Employee participates.
B. For Convenience. BINDVIEW may terminate your
employment at any time at its sole discretion.
However, if employee is terminated for convenience,
employee shall be entitled to pay for vacation time
accrued but not yet taken, as well as severance pay
in the amount of at least one-half month's salary at
time of termination.
3.0 CONFIDENTIALITY
3.1 CONSEQUENCES OF ENTRUSTMENT WITH SENSITIVE INFORMATION.
Employment should recognize that Employee's position with
BINDVIEW requires considerable responsibility and trust
Relying on Employee's ethical responsibility and undivided
loyalty, BINDVIEW expects to entrust Employee with highly
sensitive confidential, restricted, and proprietary
information involving Trade Secrets (as defined in Section
3.2). Employee should recognize that it could prove very
difficult to isolate these Trade Secrets from business
activities that Employee might consider pursuing after
termination of Employee's employment, and in some instances,
Employee may not be able to compete with BINDVIEW in certain
ways because of the risk that BINDVIEW's Trade Secrets might
be compromised. Employee is legally and ethically responsible
for protecting and ethically responsible for protecting and
preserving BINDVIEW's proprietary rights for use only for
BINDVIEW's benefit, and these responsibilities may, therefore,
impose unavoidable limitations on Employee's ability to pursue
some kinds of business opportunities that might interest
Employee during or after Employee's employment.
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3.2 TRADE SECRETS DEFINED. For purposes of this Agreement, a
"Trade Secret" is any information, including, but not limited
to, technical or nontechnical data, formulas, patterns,
compilations, programs, devices, methods, techniques,
information, drawings, processes, financial data, financial
plans, marketing plans, product plans, or lists of actual or
potential customers or suppliers that: (1) derive economic
value, actual or potential, from not being generally known to,
and not being readily ascertainable by proper means by, other
persons who can obtain economic value from their disclosure or
use; and (2) are the subject of efforts that are reasonable
under the circumstances to maintain their secrecy. "Trade
Secrets" also includes any information or materials deemed to
be proprietary or trade secrets under applicable law.
3.3 RESTRICTIONS ON USE AND DISCLOSURE OF TRADE SECRETS. Employee
agrees not to use or disclose any Trade Secrets of BINDVIEW
during Employee's employment and for so long afterwards as the
pertinent information or data remain Trade Secrets, regardless
of whether the Trade Secrets are in written or tangible form,
except as required to perform any duties for BINDVIEW.
3.4 SCREENING OF PUBLIC RELEASES OF INFORMATION. In addition, and
without any intention of limiting Employees other obligations
under this Agreement in any way, Employee should not, during
Employee's employment, reveal any notary public information
concerning the technology pertaining to the proprietary
products and manufacturing processes of BINDVIEW (particularly
technology under current development or improvement), unless
Employee has obtained approval from BINDVIEW in advance. In
that connection, Employee should submit to BINDVIEW for review
any proposed scientific or technical articles and text, notes,
or display materials for any public speeches relating to any
BINDVIEW work or product which has not yet been publicly
disclosed. BINDVIEW has the right to disapprove and prohibit,
or delete any parts of, such articles or speeches that might
disclose BINDVIEW's Trade Secrets or other confidential
information or otherwise be contrary to BINDVIEW's business
interests.
4.0 OWNERSHIP OF EMPLOYEE DEVELOPMENTS
4.1 OWNERSHIP OF WORK PRODUCT.
A. BINDVIEW shall own all Work Product (as
defined in Section 4.1(E)). All Work Product
shall be considered work made for hire by
Employee and owned by BINDVIEW.
B. If any of the Work Product may not, by
operation of law, be considered work made for
hire by Employee for BINDVIEW, or if
ownership of all right, title, and interest
of the intellectual property rights therein
shall not otherwise vest exclusively in
BINDVIEW, Employee agrees to assign, and upon
creation thereof automatically assign,
without further consideration, the ownership
of all Trade Secrets (as defined in Section
3.2), U.S. and international copyrights,
patentable inventions and related patents and
patent applications if any, and other
intellectual property
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rights therein to BINDVIEW, its successors,
and assigns.
C. BINDVIEW, its successors, and assigns, shall
have the right to obtain and hold in its or
their own name copyrights, registrations, and
any other protection available in the
foregoing.
D. Employee agrees to perform, upon the
reasonable request of BINDVIEW during or
after Employee's employment, such further
acts as may be necessary or desirable to
transfer, perfect, and defend BINDVIEW's
ownership of the Work Product When requested,
Employee will:
1. Execute, acknowledge, and deliver
any requested affidavits and
documents of assignment and
conveyance;
2. Obtain and aid in the enforcement of
copyrights and, if applicable,
patents with respect to the Work
Product in any countries;
3. Provide testimony in connection with
any proceeding affecting the right,
title, or interest of BINDVIEW in
any Work Product; and
4. Perform any other reasonable acts
deemed necessary or desirable to
carry out the purposes of this
Agreement
BINDVIEW shall reimburse all reasonable
out-of-pocket expenses incurred by Employee
at Employee's request in connection with the
foregoing.
E. For purposes hereof, "Work Product" shall
mean all intellectual property rights,
including all Trade Secrets, U.S. and
international copyrights, patentable
inventions, discoveries and improvements, and
other intellectual property rights, in any
programming, documentation, technology, or
other Work Product that relates to the
business and interests of BlNDVIEW and that
Employee may conceive, develop, or deliver to
BINDVIEW at any time during the term of
Employee's employment. Work Product shall
also include all intellectual property rights
in any programming, documentation,
technology, or other work product that is now
contained in any of the products or systems,
including development and support systems, of
BINDVIEW to the extent Employee conceived,
developed, or delivered such Work Product to
BINDVIEW prior to the date of this Agreement
while Employee was engaged as an independent
contractor or an employee of BINDVIEW.
Employee hereby irrevocably relinquishes for
the benefit of BINDVIEW and its assigns any
moral rights in the Work Product recognized
by applicable law.
4.2 INVENTION ASSIGNMENT. BINDVIEW shall be the sole owner of any
and all "Discoveries" and "Work Product". Discoveries means
all inventions, discoveries, and improvements (including
without limitation any information relating to manufacturing
techniques, processes, formulas, developments or experimental
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work, work in progress, or business trade secrets), that are
related to BINDVIEW's business. Work Product means any and
all other work product relating to Discoveries and related to
BINDVIEW's business.
A Discovery or Work Product is Related to BINDVIEW business if
it is made or conceived or reduced to practice by Employee (in
whole or in part, either alone or jointly with others),
whether or not potentially patentable or copyrightable in the
U.S. or elsewhere, and it: (a) involves equipment, supplies,
facilities, or trade secret information of BINDVIEW, or (b)
involves the time for which Employee was compensated by
BINDVIEW, or (c) relates to the business of BINDVIEW or to its
actual or demonstrably anticipated research and development,
or (d) results, in whole or in part, from work performed by
Employee for BINDVIEW.
Employee shall promptly disclose to BINDVIEW or its nominee
all Discoveries and Work Product. The terms "Discoveries" and
"Work Product" are intended to encompass Computer Software,
which is defined to encompass all Computer Programs and
associated Documentation and all Copies thereof. All such
disclosures shall include furnishing complete and accurate
copies of all Source Code, Object Code, Documentation, work
notes, test data, reports, samples, and other tangible
evidence or results (collectively referred to as "Tangible
Embodiments") of such Discoveries or Work Product. All
Tangible Embodiments of any Discoveries or Work Product shall
be deemed to have been assigned to BINDVIEW as a result of the
act of expressing any Discovery or Work Product therein.
Employee assigns and agrees to assign to BINDVIEW all his/her
interest in any country in any and all Discoveries and/or Work
Product, whether such interest arises under patent law,
copyright law, trade- secret law, semiconductor chip
protection law, or otherwise. Without limiting the generality
of the foregoing, Employee hereby authorizes BINDVIEW to make
any desired changes to any part of any Discoveries or Work
Product, to combine it with other materials in any manner
desired, and to withhold Employee's identity in connection
with any distribution or use thereof alone or in combination
with other materials.
This assignment and assignment obligation applies to all
Discoveries and/or Work Product arising during Employee's
employment, whether arising before or after the execution of
this Agreement
At the request of BINDVIEW, Employee shall promptly and
without additional compensation execute any and all patent
applications, copyright registration applications, waivers of
moral rights, assignments, or other instruments which BINDVIEW
deems necessary or appropriate to apply for or obtain Letters
Patent of the United States or any foreign country or
otherwise to protect BINDVIEW's interest in such Discovery
and/or Work Product
To the extent that any Discovery or Work Product constitutes
copyrightable or similar subject matter that is eligible to be
treated as a "work made for hire" or as having similar status
in the United States or elsewhere, it shall be so deemed.
This provision does not alter or limit Employee's other
obligations to assign intellectual property rights hereunder.
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The obligations set forth in this Section shall continue
beyond the termination of Employee's employment with respect
to Discoveries and/or Work Product conceived or made by
Employee alone or in concert with others during Employee's
employment. Those obligations shall be binding upon Employee,
his/her assigns permitted hereunder, executors, administrators
and other representatives.
4.3 CLEARANCE PROCEDURE FOR PROPRIETARY RIGHTS NOT CLAIMED BY
BINDVIEW. If Employee ever wishes to create or develop, on
Employee's own time and with Employee's own resources,
anything that may be considered Work Product but to which
Employee believes Employee should be entitled to the personal
benefit of, Employee is required to follow the clearance
procedure set forth in this section in order to ensure that
BINDVIEW has no claim to the proprietary rights that may
arise.
Before Employee begins any such work on Employee's own time,
Employee must give BINDVIEW advance notice of Employee's plans
and supply a description of the work under consideration.
Unless otherwise agreed in a writing signed by BINDVIEW prior
to receipt, BINDVIEW shall have no obligation of confidence
with respect to such description. BINDVIEW will determine, in
good faith, within thirty (30) days after Employee has fully
disclosed Employee's plans to BINDVIEW, whether the work is
claimed by BINDVIEW. If BINDVIEW determines that it does not
claim such work, Employee will be notified in writing and may
retain ownership of the development to the extent of what has
been disclosed to BINDVIEW. Employee should submit for
further clearance any significant improvement, modification or
adaptation so that it can be determined whether the
improvement, modification, or adaptation relates to the
business or interests of BINDVIEW.
5.0 RETURN OF MATERIAL
Upon the request of BINDVIEW and, in any event, upon the termination
of Employee's employment, Employee must return to BINDVIEW and leave
at its disposal all memoranda, notes, records, drawings, manuals,
computer programs, documentation, diskettes, computer tapes, and other
documents or media pertaining to the business of BINDVIEW or
Employee's specific duties for BINDVIEW including all copies of such
materials. Employee must also return to BINDVIEW and leave at its
disposal all materials involving any Trade Secrets of BINDVIEW. This
Section 5 is intended to apply to all materials made or compiled by
Employee as well as to all materials furnished to Employee by anyone
else in connection with Employee's employment.
6.0 PROHIBITION AGAINST UNFAIR BUSINESS PRACTICES
6.1 UNFAIR BUSINESS PRACTICES. Employment activities at computer
software companies such as BINDVIEW may be susceptible to
unfair or questionable business practices. For example, Trade
Secrets and other confidential information can be
misappropriated and valuable documents can be copied and taken
for improper purposes. Industrial espionage can be a serious
concern for businesses
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that depend on sensitive technology for commercial success.
Employees at such companies can be targets of, or participants
in, unfair business practices, because of the special
attractiveness of the advanced technology, computer programs,
product development strategies, and business opportunities
they come to know by virtue of their employment. It would be
unfair for a former employee or contractor of BINDVIEW to
recruit personnel directly from the ranks of BINDVIEW's own
employees by using connections and inside information
previously acquired from BINDVIEW. BINDVIEW puts great
emphasis on selecting, training, and promoting talented
individuals for positions of significant responsibility. The
time, effort, and capital invested by BINDVIEW in its work
force should not be diverted by someone operating on an inside
track. In addition, it would be unfair for individuals still
employed by BINDVIEW to form and pursue a competitive business
while receiving wages and other benefits from BINDVIEW.
6.2 REFRAINING FROM HARMFUL ACTIONS. During Employee's employment
with BINDVIEW, Employee is required to refrain from engaging
in any action that might be harmful to BINDVIEW or its
business, unless BINDVIEW consents in advance. Employee's
responsibility to promote and support BINDVIEW's business by
its very nature requires Employee to prevent BINDVIEW from
suffering injury or hardship, if it can be avoided. This
obligation is intentionally broad and general because it is
difficult to anticipate all possible circumstances, and
Employee should resolve all doubts by consulting BINDVIEW on
how best to proceed. By way of example, during Employee's
employment with BINDVIEW, Employee may not solicit or recruit
any other BINDVIEW employee to form or join another business.
BINDVIEW cannot prohibit Employee from terminating Employee's
employment and pursuing other kinds of work, but if Employee
should decide to form or join another business Employee is
required to advise BINDVIEW promptly, so that projects in
progress and under consideration are not needlessly disrupted
and so that even the possibility that Trade Secrets or other
confidential information may be compromised can be avoided.
6.3 REFRAINING FROM SOLICITATION OF CUSTOMERS. During the term of
your employment with BINDVIEW and for a period of twelve (12)
months from the voluntary or involuntary termination of your
employment with BINDVIEW for any reason whatever, you shall
not solicit, induce or attempt to induce any past or current
supplier or customer of BINDVIEW to cease doing business in
whole or in part with or through BINDVIEW.
7.0 IMPLEMENTATION
7.1 SEVERABILITY. The terms and conditions of this Agreement are
severable. The invalidity or unenforceability of any clause or
provision of this Agreement shall not affect the applicability
or any other clause or provision of this Agreement The
unenforceability of any clause or provision of this Agreement
in one case or in some circumstance shall not affect its
application in other cases or under other circumstances.
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7.2 SURVIVAL OF OBLIGATIONS. The covenants in Section 3 through
Section 7 of this Agreement shall survive termination of
Employee's employment, regardless of who causes the
termination and under what circumstances.
7.3 NOTICES. All notices required under this Agreement shall be
made in writing and shall be deemed given when (l) delivered
in person, (2) deposited in the U.S. mail, first class, with
proper postage prepaid and properly addressed, or (3) sent
through the interoffice delivery service of BINDVIEW, if
Employee is still employed by BINDVIEW at the time.
7.4 RELATED PARTIES. This Agreement shall inure to the benefit
of, and be binding upon, BINDVIEW and its parents or
subsidiaries and its affiliates, together with their
successors and assigns, and Employee, together with Employee's
executor, administrator, personal representative, heirs, and
legatees.
7.5 MERGER. This Agreement represents the entire Agreement of the
parties. This Agreement merges and supersedes all prior and
contemporaneous agreements, undertakings, covenants, or
conditions, whether oral or written, express or implied.
7.6 CHOICE OF LAW. The waiver of the breach of any term or
condition of this Agreement will not be deemed to constitute
waiver of any other subsequent breach of the same or any other
term or condition. This Agreement shall be governed by and
interpreted according to the laws of the United States of
America and to the laws of the State of Texas applicable to
agreements made between Texas residents in and for performance
entirely in Texas.
IN WITNESS WHEREOF, Employee, as an employee of BINDVIEW, has entered and
executed this Agreement under seal, and BINDVIEW has accepted Employee's
undertaking.
EMPLOYEE: Xxxxx Xxxxxxx
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/s/ Xxxxx Xxxxxxx
-------------------------------------------
Signature
Date: 9/26/96
Accepted by BINDVIEW DEVELOPMENT CORPORATION:
/s/ Xxxx Xxxxxxx
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XXXX XXXXXXX
President, BINDVIEW DEVELOPMENT CORPORATION
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APPENDIX "A"
XXXXX XXXXXXX
COMPENSATION (SALARY AND BONUSES)
Your base salary will be $65,000 per year, paid in accordance to the
existing payroll schedule.
From time to time, management of BindView Development may, at its sole
discretion, issue bonuses to you. Future bonuses are not guaranteed,
but are generally related to profitability of the Company, achievement
of personal milestones, and exemplary work performance.
BENEFITS
BindView Development has a comprehensive health, dental, and
disability insurance plan, which you can join for a deduction of $15
per paycheck or $75 per paycheck for you and your entire family ($30
or $150 per month respectively). BindView also provides a Flexible
Spending Account Plan so that you may get the tax advantages of
medical and dependent care costs and unreimbursed medical expenses as
the plan allows.
4O1K
BindView Development has a 401K plan. Enrollment dates are twice a
year and the plan has a mandatory 90 day grace period before
enrollment. You are allowed to participate in this plan within the
limits of the IRS and the plan document. Currently, the Company
guarantees to match your contribution with up to 50% of the first 6%
of your salary that you contribute to the plan and there may be a
discretionary match, based on company performance at year end.
STOCK PLAN
See attached stock plan.
