EXHIBIT 10.52
EXECUTIVE: ____________________
BINDVIEW CORPORATION
FIRST AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "AGREEMENT") is made between BindView
Development Corporation, a Texas corporation (the "COMPANY"), and the
"EXECUTIVE" identified above. Unless otherwise indicated, all references to
Sections are to Sections in this Agreement. This Agreement, when executed by
both the Executive and the Company, is effective as of the date executed by the
Executive as written on the signature page ("EFFECTIVE DATE"). This Agreement
amends, restates, and therefore supersedes the First Amended and Restated
Executive Employment Agreement between the parties dated as of ___________, but
without a break in the Executive's Employment with the Company.
1. BACKGROUND.
1.1 The Executive currently holds a senior executive position with the
Company. As a result, the Executive has significant responsibility for
the Company's management, profitability and growth. Likewise, the
Executive possesses an intimate knowledge of the Company's business and
affairs, including its policies, plans, methods, personnel,
opportunities, and challenges.
1.2 The Compensation Committee of the Company's Board of Directors (the
"Board") considers the continued employment of the Executive to be in
the best interests of the Company and its shareholders. The Compensation
Committee desires to structure the Executive's compensation to encourage
the Executive to remain in service to the Company, in part by providing
for certain severance benefits if the Executive's employment ends in
certain specified ways.
2. DEFINITIONS. For purposes of this Agreement, the following terms have
the meanings set forth below. Other defined terms have the meanings set
forth in the provisions of this Agreement in which they are used.
2.1 BASE SALARY - see Section 4.1.
2.2 BENEFIT means any Company- provided or -sponsored pension plan, 401k
plan, insurance plan, employee stock purchase plan, or other employee
benefit plan, program or arrangement, made available to the Company's
employees generally.
2.3 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.
2.4 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.
2.5 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.
2.6 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.
2.7 BONUS POTENTIAL AT TARGET means the bonus amount that would be earned by
the Executive under the Corporate Bonus Plan if On-Target Performance
has been achieved. The Executive's current Bonus Potential At Target is
set forth in Schedule 1. Such bonus amount shall be automatically
increased by the same percentage as any increase in Base Salary (see
also Section 4.1), as well as any other increases in such bonus amount
that the Company, in its sole discretion, may grant in the future. If
such bonus amount is increased at any time, then the resulting increased
bonus amount shall be deemed the Bonus Potential At Target for all
purposes hereunder.
2.8 BONUS POTENTIAL EARNED means the amount of the Executive's Bonus
Potential At Target that was earned during the bonus period in question.
The amount earned will be equal to the Percent of Bonus Potential at
Target Earned (as that term is used in the Corporate Bonus Plan) during
the bonus period that corresponds to actual performance during that
period, multiplied by the Executive's Bonus Potential At Target. The
amount earned will be prorated for any bonus period the Executive was
not employed by the Company for the entire bonus period based on the
portion of the bonus period the Executive was employed by the Company.
In no event will any portion of the Bonus Potential At Target be deemed
to have been earned by the Executive if the Executive resigns other than
for Good Reason or if the Employment is terminated for Cause.
2.9 CAUSE: As used in this Agreement:
(a) The term "Cause" or "for cause" or "with cause" (in upper or
lower case) means only any one or more of the following except as
excluded by subparagraph (b): (1) the Executive's conviction of a
felony; (2) the Executive's willful, material and irreparable
breach of this Agreement (other than for reason of illness or
disability); (3) the Executive's gross negligence in the
performance of, or intentional nonperformance of or inattention
to, the Executive's material duties and responsibilities
hereunder, continuing for thirty (30) days after receipt of
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written notice of need to cure the same; or (4) the Executive's
willful dishonesty, fraud or material misconduct with respect to
the business or affairs of the Company.
(b) The terms "Cause," "for cause," and "with cause" (in upper or
lower case) shall not include any of the following: (1) bad
judgment; (2) negligence other than gross negligence; (3) any act
or omission that was based upon (i) authority given pursuant to a
resolution duly adopted by the Board, (ii) instructions of the
chief executive officer of the Company or (iii) the advice of
counsel for the Company; or (4) any act or omission that the
Executive believed in good faith to have been in the interest of
the Company, without intent of the Executive to gain therefrom,
directly or indirectly, a personal profit to which he was not
legally entitled.
2.10 COBRA means the Consolidated Omnibus Budget Reconciliation Act, as the
same may be amended from time to time, or any successor statute,
together with any applicable regulations in effect at the time in
question.
2.11 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, unless the combination itself and its economic value and
principles of operation are themselves within such an exception.
2.12 CORPORATE BONUS PLAN refers to the plan that provides for
incentive-based annual corporate bonuses for all Company employees other
than those paid sales commissions, or such other bonus plan as the
Company may from time to time adopt in its sole discretion, for
providing such incentive-based annual bonuses. The Corporate Bonus Plan
shall establish the bonus levels by employee group and the Company- and
employee-performance criteria required for specified bonus payment
percentages to be earned. Any such employee-performance criteria which
the Company makes applicable to the Executive shall be consistent with
the Executive's Office and Position.
2.13 DAY, in upper or lower case, means a calendar day except as otherwise
stated.
2.14 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.
2.15 DISABILITY shall mean the inability of the Executive to perform his
duties hereunder for a continuous period exceeding three months
(excluding any leaves of absences approved by the Company), as a result
of incapacity due to mental or physical injury or illness that is
determined to be
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total and permanent by a physician selected by the Company or its
insurers and acceptable to the Executive or the Executive's legal
representative.
2.16 EMPLOYMENT means the Executive's employment with the Company.
2.17 GOOD REASON means the occurrence of any one or more of the following
events without the Executive's express prior written consent (see also
the notice-and-cure provision in the definition of Resignation for Good
Reason):
(a) (1) removal of the Executive from the Office or Position, or (if
re-election is required for the Executive to retain the Office or
Position) failure to re-elect the Executive to the Office or
Position; or (2) a material diminution in the Executive's Office,
Position, status, duties, or responsibility from that held by the
Executive immediately prior to such change; or (3) the assignment
by the Company to the Executive of duties that are materially
inconsistent with the Executive's Office or Position;
(b) (1) the Company's requiring the Executive to perform a majority
of his duties or to be permanently based outside of, or the
moving of the Executive's principal office space from, the
Company's Principal Operating Offices; or (2) the Company's
requiring the Executive to be permanently based (meaning
requiring the Executive to perform a majority of his duties for a
period of more than 30 days) anywhere other than within 50 miles
of the Executive's job location at the time that the directive
for such relocation is made by the Company;
(c) any Reduction in the Executive's Base Salary (except as provided
in the next sentence), Bonus Potential At Target, or other
compensation (including without limitation any Reduction of any
non-contingent bonus- or incentive compensation for which the
Executive is eligible). Notwithstanding the previous sentence,
the Executive's Base Salary may be reduced by the Company one
time during the Employment, if, and on condition that, such
reduction is part of a uniform, across-the-board base salary
reduction in which the same percentage reduction is applied to
all Senior Executives;
(d) failure to provide the Executive with any Benefit for which the
Executive is eligible under the Benefit plan's requirements (and,
if such Benefit in question is optional, which the Executive has
elected to receive);
(e) any failure of the Company to fulfill its obligations under this
Agreement or under any stock or stock option agreement, change of
control agreement, bonus, benefit or incentive plan or other
agreement between the Executive and the Company (see also the
notice-and-cure provision in the definition of Resignation for
Good Reason);
(f) failure of the Company to provide or maintain a Corporate Bonus
Plan whereby the Executive may earn a bonus as set forth in
Section 4.2; or
(g) any purported termination by the Company of the Employment other
than as expressly permitted by this Agreement.
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2.18 INVENTION means any and all inventions, discoveries, and improvements,
whether or not patentable, along with any and all materials and work
product relating thereto.
2.19 OFFICE means the office in the Company set forth in Schedule 1. If the
Company in its sole discretion promotes the Executive to a more senior
office in the Company (e.g., vice president to senior vice president),
then the such more senior office shall be deemed the Office for all
purposes hereunder.
2.20 ON-TARGET PERFORMANCE means the point at which the requirements under
the Corporate Bonus Plan necessary for a full payout of the Bonus
Potential at Target have been achieved. The Company performance
requirements necessary for a full payout will be the same for all
employees participating in the Corporate Bonus Plan.
2.21 PERSON means a natural person, corporation, partnership, or other legal
entity, or a joint venture of two or more of the foregoing.
2.22 POSITION means the area of responsibility so identified in Schedule 1.
If the Company in its sole discretion increases the Executive's area of
responsibility, then such increased area of responsibility shall be
deemed the Position for all purposes hereunder.
2.23 PRINCIPAL OPERATING OFFICES means the office of the Company where the
majority of the other most senior executives of the Company perform the
majority of their respective duties.
2.24 REDUCTION, as applied to any aspect of the Executive's compensation or
benefits, means any exclusion, discontinuance without comparable
replacement, diminution, or reduction in the same as in effect
immediately prior to such exclusion, discontinuance, diminution, or
reduction.
2.25 RESIGN FOR GOOD REASON or Resignation for Good Reason means that all of
the following occur:
(a) the Executive notifies the Company in writing, or the Company
notifies the Employee in writing, in accordance with the notice
provisions of this Agreement or otherwise, of the occurrence of
one or more events constituting Good Reason hereunder;
(b) the Company fails to revoke, rescind, cancel, or cure the event
(or if more than one, all such events) that was the subject of
the notification under subparagraph (a) within 10 business days
after such notice; and
(c) within ten (10) business days after the end of the
ten-business-day period described in subparagraph (b), the
Executive delivers to the Company a notice of resignation in
accordance with this Agreement.
2.26 SCHEDULE 1 means Schedule 1 set forth at the end of this Agreement above
the parties' signatures.
2.27 SENIOR EXECUTIVES means the executives of the Company holding the
following positions, by whatever title designated, and no others: chief
executive officer; chief financial officer; chief technology officer;
senior vice president of business development; senior vice president of
worldwide marketing; vice president of worldwide sales; general counsel;
and chief accounting officer.
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2.28 SEVERANCE BENEFITS means the post-employment compensation and benefits
to be provided to the Executive by the Company in as set forth in
Section 6.
2.29 SEVERANCE PAYMENT - see Section 6.1.
2.30 TERMINATION DATE means the effective date of a termination of the
Employment by either the Company or the Executive.
2.31 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 Position; Office. 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 Office and Position
referred to in Schedule 1.
(a) 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 the Office and Position as the Chief
Executive Officer of the Company may from time-to-time assign to
the Executive.
(b) This Section 3.1 shall not be construed as preventing the
Executive from (i) serving on corporate, civic or charitable
boards or committees (only with the prior approval of the chief
executive officer of the Company in the case of corporate
boards), (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 that 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. Without
limiting the previous sentence, it is expressly understood and
agreed that the Executive's engaging in the "Non-Interfering
Activities," if any, listed in Schedule 1 (or the conduct of
activities similar in nature and scope thereto) will not be
deemed to interfere with the performance of the Executive's
responsibilities to the Company.
3.2 Office Space, Equipment, etc. The Company shall provide the Executive
with office space, related facilities, equipment, and support personnel
that are commensurate with the Office and Position.
3.3 Expense Reimbursement.
(a) The Company will timely 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.
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(b) Without limiting Section 2.17(b) (Good Reason includes relocation
without consent), or this Section 3.3, if the Company determines
that the Executive shall be relocated, then the Company shall, in
connection with such relocation, pay or reimburse the Executive
for all reasonable moving expenses incurred by the Executive.
4. COMPENSATION AND BENEFITS DURING EMPLOYMENT. During the Employment, the
Company shall provide compensation and benefits to the Executive as
follows.
4.1 Base Salary. The Company shall pay the Executive a base salary at a rate
(before deductions, e.g., for employee-paid insurance premiums;
deferrals, e.g., for flex-plan contributions; or withholding) not less
than the Base Salary rate set forth in Schedule 1. If the Company in its
sole discretion increases the Executive's base salary, then such
increased salary shall be deemed the Base Salary for all purposes
hereunder. All salary payments shall be made in accordance with the
normal payroll practices of the Company but in no less than equal
semi-monthly installments, less withholding or deductions required by
law or agreed to by the Executive.
4.2 Annual Bonus. In addition to the Base Salary, the Executive will
participate in the Company's Corporate Bonus Plan. Executive will be
paid his Bonus Potential Earned pursuant to terms of the Corporate Bonus
Plan based on his Bonus Potential At Target and his actual performance
during the bonus period. The Bonus Potential Earned, if any, will be
paid in full in cash at the same time as the payment of annual bonuses
under the Corporate Bonus Plan are made to other participants in the
plan, with such time to be determined by the Company in its discretion
but in no event later than (i) 15 days following the completion of the
Company's annual audit or (ii) the date that the Bonus Potential Earned
must be paid in order to be deductible by the Company for U.S. federal
income tax purposes for the tax year in which the Bonus Potential Earned
was earned, whichever is later.
4.3 Benefits. The Executive shall, upon satisfaction of legal or applicable
third-party provider eligibility requirements with respect thereto, be
entitled to participate in all Benefits now or hereafter in effect or
that are hereafter made available to the Company's employees generally.
The previous sentence shall not be construed as limiting the Company's
right, in its sole discretion, to add to, reduce, modify, or eliminate
any such Benefit. In addition, the Company shall maintain for the
Executive any specific benefits set forth in Schedule 1.
4.4 Vacation; Holidays; Sick Leave. 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 Senior
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.
4.5 Annual Compensation Review. At least annually during the Employment, the
Company shall review with the Executive the Base Salary, the Bonus
Potential At Target, and all other forms of compensation, which the
Executive is then receiving (or, in the case of contingent compensation,
for which the Executive is a participant in the applicable plan). The
Base Salary may be increased (but not decreased) from time to time as
determined by the Company's board of directors or the compensation
committee thereof. The Executive's Bonus Potential At Target shall be
automatically increased by the same percentage as any increase in the
Base Salary as provided in
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Section 4.1. Any increase in Base Salary shall not limit or reduce any
other obligation of the Company to the Executive under this Agreement.
The Base Salary may not be decreased without the Executive's express
prior written consent.
5. TERMINATION OF EMPLOYMENT.
5.1 At-Will Employment; Termination Date. The Executive will be an "at will"
employee during the entire time of the Employment. Either the Company or
the Executive may terminate the Employment at any time, for any reason
or no reason, with or without cause. Any such termination shall be by
notice in accordance with this Agreement. The Termination Date of the
Employment will be 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.
5.2 Notice of Resignation; Waiver of Notice Period. If the Executive resigns
from the Company, the Executive will give the Company at least two (2)
weeks' prior notice of resignation. The Company may in its discretion
waive any notice period stated in the Executive's notice of resignation,
in which case the Termination Date of the Employment will be the date of
such waiver.
5.3 No Termination of Agreement Per Se. Termination of the Employment will
not terminate this Agreement per se; to the extent that either party has
any right under applicable law to terminate this Agreement, any such
termination of this Agreement shall be deemed solely to be a termination
of the Employment without affecting any other right or obligation
hereunder except as provided herein in connection with termination of
the Employment.
5.4 Termination for Disability. If the Company determines in good faith that
the Executive has become subject to a Disability during the Employment
(pursuant to the definition of Disability as set forth in this
Agreement) and that it intends to terminate the Employment for that
reason, then it shall give to the Executive written notice in accordance
with this Agreement of its intention to terminate the Executive's
employment. If the Company gives the Executive such written notice, the
Executive's Employment shall terminate effective on the 30th day after
receipt of such notice by the Executive, provided that, within such
30-day period, the Executive has not returned to full-time performance
of the Executive's duties.
5.5 Exit Interview. If the Employment is terminated for any reason other
than death, then 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
and are in keeping with the Company's employment and termination
policies for all employees, including but not limited to providing the
Company with reasonably complete and accurate information about any
plans the Executive may have for future employment to the extent such
information directly relates to the Company's protection of its
intellectual property rights. The Company shall complete this
exit-interview process within 30 days after the Termination Date.
5.6 Transition of Email, etc. If the Employment is terminated by either the
Executive or the Company, the Company will provide reasonable
cooperation in (i) permitting the Executive to copy or remove the
Executive's personal files (not including Company confidential
information) from the Executive's
PAGE 8
computer and office, and (ii) arranging for any personal emails or phone
messages to be forwarded to the Executive.
5.7 Payments Following Termination . If the Employment is terminated for any
reason, either by the Company or by the Executive's resignation, then
the Company shall pay the Executive the following amounts as part of the
Company's next regular payroll cycle but in no event later than thirty
(30) days after the Termination Date, to the extent that the same have
not already been paid:
(a) any and all salary and vacation pay earned through the
Termination Date; and
(b) any reimbursable expenses properly reported by the Executive.
The Company shall also pay any Bonus Potential Earned at the same time
that payments are made to other participants in the Corporate Bonus
Plan.
6. SEVERANCE BENEFITS UPON CERTAIN TERMINATIONS
6.1 Severance Payment. If (1) the Employment is terminated by the Company
other than for Cause, or (2) the Executive resigns for Good Reason, or
(3) the Executive dies, then:
(a) the Company shall pay to the Executive, if living, an amount (the
"SEVERANCE PAYMENT") equal to one (1) times the highest Base
Salary in effect (i) during the 12 months immediately prior to
the Termination Date or (ii) during the Employment, if the
Employment has lasted less than 12 months. The Severance Payment
shall be paid in equal, twice-monthly installments over a period
of 12 months after the Termination Date;
(b) if the Executive is not living, then the Severance Payment shall
be paid to the Executive's heir(s), assign(s),
successor(s)-in-interest, or legal representative(s), in the same
manner as specified in subparagraph (a); and
(c) as a condition to providing the Executive with the Severance
Payment, the Company, in its sole discretion, may require the
Executive to first execute a release, in the form attached hereto
as Exhibit A
6.2 Continuation of Insurance and Related Benefits. If (1) the Employment is
terminated by the Company other than for Cause, or (2) the Executive
resigns for Good Reason, or (3) the Executive dies, then:
(a) The Company shall, to the greatest extent permitted by applicable
law and the terms and conditions of the applicable insurance or
benefit plan, maintain the Executive (if living) and the
Executive's dependents as participants in the life, health,
dental, accident, disability insurance, and similar benefit plans
offered to (and on the same terms as) other Senior Executives
until the 12-month anniversary of the Termination Date.
(b) To the extent that applicable law or the terms and conditions of
the applicable insurance or benefit plan do not permit the
Company to comply with subparagraph (a), the Company shall
reimburse the Executive (if living) and the Executive's
dependents, for all expenses incurred by any of them in
maintaining the same levels of coverage under COBRA as in the
PAGE 9
plans referred to in subparagraph (a), for the same period as
provided in subparagraph (a), but solely to the extent that such
expenses exceed the deduction or amount that would have been
required to be paid by the Executive for such coverage if the
Employment had not been terminated.
(c) If Employment is terminated by the Executive's death, or if the
Executive dies before the expiration of the Company's obligation
under this Section 6.2, then the Company shall continue to
maintain coverage for the Executive's dependents under all
insurance plans referred to in this Section 6.2 for which such
dependents had coverage as of the date of the Executive's death,
at the same coverage levels and for the same period of time as
would have been required had the Executive not died.
(d) Following the expiration of such coverage period by the Company
the Executive (if living) and the Executive's dependents will be
entitled to elect to maintain coverage under such insurance- and
benefit plans in accordance with COBRA to the fullest extent
available under law.
6.3 D&O Insurance and Indemnification. Through at least the tenth
anniversary of the Termination Date, the Company shall maintain coverage
for the Executive as an additional insured on all directors' and
officers' insurance maintained by the Company for the benefit of its
directors and officers on at least the same basis as all other covered
individuals and provide the Executive with at least the same corporate
indemnification as it provides to other Senior Executives.
6.4 No Other Severance Benefits. Other than as described above in this
Section 6.2, the Executive shall not be entitled to any payment,
benefit, damages, award or compensation in connection with termination
of the Employment, by either the Company or the Executive, except as may
be expressly provided in another written agreement, if any, executed by
the Executive and by an authorized officer of the Company. Neither the
Executive nor the Company is obligated to enter into any such other
written agreement.
6.5 No Waiver of ERISA-Related Rights. Nothing in this Agreement 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.
6.6 Mitigation Not Required. The Executive shall not be required to mitigate
the amount of any payment or benefit which is to be paid or provided by
the Company pursuant to this Section 6. Any remuneration received by the
Executive from a third party following termination of the Employment
shall not apply to reduce the Company's obligations to make payments or
provide benefits hereunder.
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.
PAGE 10
8. CONFIDENTIAL INFORMATION.
8.1 The Executive acknowledges that the law provides the Company with
protection for its trade secrets and confidential information. The
Executive will not disclose, directly or indirectly, any Confidential
Information without authorization from the Company's management. The
Executive will not use any Confidential Information in any way, either
during or after the Employment with the Company, except as required in
the course of the Employment.
8.2 The Executive will strictly adhere to any obligations that may be owed
to former employers insofar as the Executive's use or disclosure of
their confidential information is concerned.
8.3 All originals and all copies of any drawings, blueprints, manuals,
reports, computer programs or data, notebooks, notes, photographs, and
all other recorded, written, or printed matter relating to research,
manufacturing operations, or business of the Company made or received by
the Executive during the Employment are the property of the Company.
Upon any termination of the Employment, regardless of the circumstances,
the Executive will immediately deliver to the Company all property of
the Company which may still be in the Executive's possession. The
Executive will not remove or assist in removing such property from the
Company's premises under any circumstances, either during the Employment
or after termination thereof, except as authorized by the Company
management.
9. OWNERSHIP OF INTELLECTUAL PROPERTY. The following provisions apply
except to the extent, if any, expressly stated otherwise in Schedule 1.
9.1 The Company will be the sole owner of any and all BindView Inventions
and BindView Materials which the Executive participates in inventing or
developing in any way. The Executive will promptly disclose to the
Company, or its nominee(s), without additional compensation, all
BindView Inventions and BindView Materials. The Executive will assist
the Company, at the Company's expense, in protecting any intellectual
property rights that may be available anywhere in the world for BindView
Inventions and BindView Materials, including but not limited to signing
U.S. or foreign patent applications, oaths or declarations relating to
such patent applications, and similar documents. To the extent that any
BindView Invention or BindView Materials are eligible under applicable
law to be deemed a "work made for hire," or otherwise to be owned
automatically by the Company, the same will be deemed as such, without
additional compensation to the Executive.
9.2 To the extent that, as a matter of law, the Executive retains any
so-called "moral rights" or similar rights as in any BindView Invention
or BindView Materials, the Executive authorizes the Company or its
designee to make any changes it desires to any part of the same; to
combine any such part with other materials; and to withhold the
Executive's identity in connection with any business operations relating
to the same; in any case without additional compensation to the
Executive.
10. NONCOMPETITION COVENANT.
10.1 The Company agrees to provide the Executive, during the Employment, with
on-going access to pre-existing and new Confidential Information
commensurate with the Executive's duties, including
PAGE 11
but not limited to access to appropriate portions of the Company's
computer network. To aid in the protection of the Company's legitimate
interests in such Confidential Information, and further in consideration
of the Company's agreement hereunder to provide the Executive with
Severance Benefits, the Executive agrees that, beginning on the date
that the Company first provides the Executive with such access in any
form, and ending one year thereafter (subject to tolling as provided in
Section 10.4), unless the Company in its sole discretion gives its prior
written consent, the Executive will not, directly or indirectly:
(a) participate, for himself or on behalf of any other Person, in any
business that competes with any BindView Business anywhere in the
world, where the Executive's Employment related in any way to
such BindView Business. As used in the previous sentence,
"participate" includes but is not limited to permitting the
Executive's name directly or indirectly to be used by or to
become associated with any other Person (including as an advisor,
representative, agent, promoter, independent contractor, provider
of personal services or otherwise) in connection with such
competing business;
(b) interfere, directly or indirectly, with the relationship between
any BindView Company and its employees by inducing any such
employee to terminate his or her employment;
(c) solicit for employment, directly or indirectly, on behalf of the
Executive or any other Person, any person who is at the time in
question, or at any time in the then-past three-month period has
been, an employee of any of the BindView Companies; or
(d) induce or assist any other Person to engage in any of the
activities described in subparagraphs (i) through (iii).
10.2 The Executive acknowledges that the Company would not permit the
Executive to have or to continue to have access to Confidential
Information without the Executive's agreement to the restrictions in
Section 10.1. The Executive further acknowledges and agrees that: (i)
the restrictions in Section 10.1 are fair and reasonable and the result
of negotiation, relate to special, unique and extraordinary matters.
10.3 If the Executive has never been provided with any access to Confidential
Information at the time the Employment is terminated (including but not
limited to never having been provided access to an email account or
other access to a computer network of any BindView Company), then the
Executive will be automatically released from the restrictions in
Section 10.1. Such release will be the Executive's EXCLUSIVE REMEDY for
any actual or alleged breach of this Agreement by the Company in not
providing such access.
10.4 If the Executive violates the restrictions set forth in Section 10.1,
and the Company brings a legal action for injunctive or other relief,
the Company shall not be deprived of the benefit of those restrictions.
Accordingly, the restrictions in Section 10.1 will be tolled during any
period in which the Executive violates any of such restrictions until
the date of entry by a court of competent jurisdiction of a final
judgment enforcing such restrictions in Section 10.1, as written or as
modified by the court.
PAGE 12
10.5 The Company will not unreasonably withhold its consent under Section
10.1 to the Executive's employment, after the Employment, by a
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.
10.6 The Executive may acquire a direct or indirect ownership interest of not
more than 5% of the outstanding securities of any corporation which is
engaged in activities prohibited by Section 10.1 which is listed on any
recognized securities exchange or traded in the over-the-counter market
in the United States, provided that such investment is of a totally
passive nature and does not involve the Executive's devoting time to the
management or operations of such corporation.
10.7 If a Tribunal determines that any of the restrictions set forth in
Section 10.1 is unreasonably broad or otherwise unenforceable under
applicable law, then (i) such determination shall be binding only within
the geographical jurisdiction of the Tribunal, and (ii) the restriction
will not be terminated or rendered unenforceable, but instead will be
reformed (solely for enforcement within the geographic jurisdiction of
the Tribunal) to the minimum extent required to render it enforceable.
11. EMPLOYEE HANDBOOKS, ETC. From time to time, the Company may, in its
discretion, establish, maintain and distribute employee manuals or
handbooks or personnel policy manuals, and officers or other
representatives of the Company may make written or oral statements
relating to personnel policies and procedures. The Executive will adhere
to and follow all rules, regulations, and policies of the Company set
forth in such manuals, handbooks, or statements as they now exist or may
later be amended or modified. Such manuals, handbooks and statements do
not constitute a part of this Agreement nor a separate contract, and
shall not be deemed as amending this Agreement or as creating any
binding obligation on the part of the Company, but are intended only for
general guidance.
12. ARBITRATION.
12.1 Except as set forth in Section 12.3 or to the extent prohibited by
applicable law, any dispute, controversy or claim arising out of (by
statute, common law, or otherwise) or relating to (i) this Agreement or
its interpretation, performance, or alleged breach, or (ii) the
Employment, including but not limited to its commencement and its
termination, will be submitted to binding arbitration before a single
arbitrator in accordance with the National Rules for the Resolution of
Employment Disputes of the American Arbitration Association (AAA) in
effect on the date of the demand for arbitration.
12.2 The arbitration shall take place before a single arbitrator, who will
preferably but not necessarily (x) be a practicing attorney, and (y)
have at least five years' experience in working in or with computer
software companies. Unless otherwise agreed by the parties, the
arbitration shall take place in the city in which the Executive's
principal office space is located at the time of the dispute or was
located at the time of termination of the Employment (if applicable).
Unless otherwise agreed by the parties, the Company will pay all
reasonable fees and expenses charged by the arbitrator and
PAGE 13
the AAA but will not pay the Executive's fees or expenses associated
with the arbitration. The arbitrator is hereby directed to take all
reasonable measures not inconsistent with the interests of justice to
expedite, and minimize the cost of, the arbitration proceedings.
Judgment upon the award rendered by the arbitrator may be entered in any
court having jurisdiction.
12.3 To protect Inventions, trade secrets, or other confidential information,
the Company may seek temporary, preliminary, and permanent injunctive
relief in a court of competent jurisdiction, including but not limited
to an injunction enforcing the provisions of Sections 8, 9, and 10, in
each case, without waiving its right to arbitration.
12.4 At the request of either party, the arbitrator may take any interim
measures s/he deems necessary with respect to the subject matter of the
dispute, including measures for the preservation of confidentiality set
forth in this Agreement.
13. OTHER PROVISIONS.
13.1 This Agreement shall inure to the benefit of and be binding upon (i) the
Company and its successors and assigns and (ii) the Executive and the
Executive's heirs and legal representatives, except that the Executive's
duties and responsibilities under this Agreement are of a personal
nature and will not be assignable or delegable in whole or in part
without the Company's prior written consent.
13.2 The Executive represents and warrants (i) that he has no obligations,
contractual or otherwise, inconsistent with the Executive's obligations
set forth in this Agreement, and (ii) that all of his responses to any
requests, by or on behalf of the Company, for information and/or
documents, in connection with the Company's hiring of the Executive
and/or with the negotiation of this Agreement, are truthful and
complete.
13.3 All notices and statements with respect to this Agreement must be in
writing and shall be delivered by certified mail return receipt
requested; hand delivery with written acknowledgment of receipt; or
overnight courier with delivery-tracking capability. Notices to the
Company shall be addressed to the Company's general counsel or chief
executive officer at the Company's then-current Principal Operating
Offices. 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. A party may change its address
for notice by the giving of notice thereof in the manner hereinabove
provided.
13.4 If the Executive Resigns for Good Reason because of (i) the Company's
failure to pay the Executive on a timely basis the amounts to which he
is entitled under this Agreement or (ii) any other breach of this
Agreement by Company, then the Company shall pay all amounts and damages
to which the Executive may be entitled as a result of such failure or
breach, including interest thereon at the maximum non-usurious rate and
all reasonable legal fees and expenses and other costs incurred by the
Executive to enforce the Executive's rights hereunder and the Executive
will be relieved of all obligations under Section 10 (noncompetition).
PAGE 14
13.5 This Agreement sets forth the entire present 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.
13.6 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.
13.7 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.
13.8 This Agreement will be governed and interpreted under the laws of the
United States of America and of the State of Texas law as applied to
contracts made and carried out in entirely Texas by residents of that
State.
13.9 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.
13.10 Termination of the Employment, with or without Cause, will not affect
the continued enforceability of this Agreement.
13.11 Section headings are for convenience only and shall not define or limit
the provisions of this Agreement.
13.12 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.
(Signature page follows)
PAGE 15
-------------------------------------------------------------------------------
SCHEDULE 1
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Effective Date
-------------------------------------------------------------------------------
Office
-------------------------------------------------------------------------------
Position
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Base Salary
-------------------------------------------------------------------------------
Bonus Potential At Target
-------------------------------------------------------------------------------
Minimum annual vacation
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Specific benefits
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Non-Interfering Activities
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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 to be effective as of the
Effective Date.
BINDVIEW CORPORATION, BY: EXECUTIVE
--------------------------- ---------------------------
Xxxx X. Xxxxxxx, President Signature
and Chief Executive Officer
PAGE 16
EXHIBIT A
FORM OF GENERAL RELEASE
I, the undersigned, execute this release ("Release") in consideration of, and
as a condition precedent to, my being provided certain Severance Benefits
pursuant to an Executive Employment Agreement, between myself (referred to
therein as the "Executive") and BINDVIEW CORPORATION ("BindView").
1. On behalf of myself, my attorneys, heirs, executors, administrators,
successors, and assigns, I hereby fully release and discharge BindView, its
parent, subsidiary, and affiliate corporations, and related companies, as well
as all predecessors, successors, assigns, directors, officers, partners,
agents, employees, former employees, heirs, executors, attorneys, and
administrators (hereinafter "BindView, et al."), from all suits, causes of
action, and/or claims of any nature whatsoever, whether known, unknown, or
unforeseen, which I have or may have against BindView, et al., arising out of
any event, transaction, or matter that occurred before the date of my signing
of this Release. I covenant that neither I, nor any person, organization, or
other entity on my behalf, will xxx BindView, et al., or initiate any type of
action for damages, against BindView, et al. with respect to any event,
transaction, or matter that occurred before the date of my signing of this
Release. I understand and agree that this Release is a GENERAL RELEASE.
2. This Release specifically includes, but is not limited to, a release of all
claims of breach of contract, employment discrimination, (including, but not
limited to, discrimination on the basis of race, sex, religion, national
origin, age, disability or any other protected status, and coming within the
scope of Title VII of the U.S. Civil Rights Act, as amended, the U.S. Age
Discrimination in Employment Act, as amended, the U.S. Older Workers Benefit
Protection Act, or any other applicable state or federal statute in any U.S. of
foreign jurisdiction), claims concerning recruitment, hiring, salary rate,
stock options, severance pay, wages or benefits due, employment status, libel,
slander, defamation, intentional or negligent misrepresentation and/or
infliction of emotional distress, together with any and all tort, contract, or
other claims which might have been asserted by my or on my behalf in any suit,
charge of discrimination, or claim against BindView, et al.
3. If I have passed my fortieth (40th) birthday, I acknowledge that:
a. I have been given an opportunity of forty-five (45) days to
consider this Release and that I have been encouraged by BindView
to discuss its terms with legal counsel of my own choosing and at
my own expense;
b. For a period of seven (7) days following my execution of this
Release, I will have the right (referred to herein as the
"Revocation Right") to revoke my waiver of claims arising under
the Age Discrimination in Employment Act ("ADEA"), a U.S. federal
statute that prohibits employers from discriminating against
employees who are over the age of 40. If I wish to exercise the
Revocation Right:
i. I must inform BindView by delivering a written notice of
revocation to BindView's Houston office, attention:
General Counsel, no later than 5:00 p.m. on the seventh
calendar day after the date written by my signature below;
and
PAGE 17
ii. If I do so, then (a) the Release shall be voided as to
claims arising under the ADEA, but (b) the Release shall
remain in full force and effect as to any and all other
claims.
4. I agree that except as expressly provided otherwise herein, this Release may
not be released, discharged, abandoned, supplemented, changed, or modified in
any manner, except by an instrument in writing signed by me and a duly
authorized member of the management of BindView.
Date: ____________________ _____________________________
[Signature]
_____________________________
Printed Name
PAGE 18
