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EXHIBIT 10.2
EMPLOYMENT AGREEMENT BETWEEN BINDVIEW DEVELOPMENT
AND XXXX XXXXXXX
This Amended and Restated Employment Agreement, dated this 24th day of June,
1999 (this "Agreement"), is entered into by and between BindView Development
Corporation, a Texas corporation (the "Company"), Netect Inc., a Massachusetts
corporation and wholly-owned subsidiary of the Company ("Netect"), and Xx. Xxxx
X. Xxxxxxx (the "Employee").
RECITALS
In consideration of the premises and the covenants and agreements contained
herein, and intending to be legally bound, the parties hereto agree as follows:
1 Introduction
(a) The recitals to this Agreement constitute an integral and
indivisible part of this Agreement.
(b) This Agreement supersedes any previous agreement regarding
the Employee's employment, including any agreement with
Netect or Netect Ltd.
2 Position; Duties; Location
During the Term of Employment (as hereinafter defined), the Employee
will serve as the Vice President of Research and Development of the
Company, at the discretion of the President and Chief Executive
Officer of the Company, and shall perform such duties consistent
with such position as are assigned to him from time to time by the
President and Chief Executive Officer of the Company. The Employee
agrees to devote all of his business time, skill, attention and best
efforts to the Company's business to discharge and fulfill the
responsibilities assigned to him in that capacity. The Employee
agrees not to render services to any other person or entity of any
kind for compensation other than as set forth on Schedule A hereto,
and in addition shall not engage in any activity that conflicts or
interferes with the performance of the duties and responsibilities
of the position.
The Employee and the Company expect that the Employee will spend
time in Houston, Texas as required. To facilitate this, during the
Term of Employment the Company will provide the Employee at the
Company's expense with a furnished temporary apartment in Houston
and will pay reasonable travel expenses incurred by the Employee to
and from Houston. With the approval of the President and Chief
Executive Officer of the Company, the Employee may also receive
reimbursement for the reasonable travel expenses of his immediate
family to and from Houston.
3 Compensation
(a) In consideration for the performance of his duties
hereunder, BindView shall continue your previously
existing base salary from Netect. As such, the Employee
shall be paid an annual base salary (the "Annual Base
Salary") of $175,000, which will be paid in 24 equal
payments or otherwise in accordance with standard payroll
procedures.
(b) Bonus. The Employee shall be eligible to receive a bonus
("Incentive Bonus Compensation"). All Incentive Bonus
Compensation shall be paid, if earned, in accordance with the
Company's standard payment procedures for officer bonuses. The
Incentive Bonus Compensation for quarters following March 31,
1999 (the "Bonus Agreement") shall be based on (i) the
achievement of management based objectives to be agreed upon in
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writing by the Company and the Employee and (ii) the
achievement of criteria relating to revenue and profitability
outlined in a bonus plan matrix to be agreed upon by the
Company and the Employee. The total Incentive Bonus
Compensation for a calendar year if both (i) and (ii) of the
Bonus Agreement are achieved shall be as set forth from time to
time on Schedule B hereto (the "On Target Bonus"). The
Incentive Bonus Compensation for a calendar year will be less
than the On Target Bonus if the criteria specified in the Bonus
Agreement are not achieved and will greater than the On Target
Bonus if the criteria specified in the Bonus Agreement are
exceeded.
The Incentive Bonus Compensation shall not constitute part
of the Employee's salary for the calculation of any
employment benefits.
4 Employment Benefits
During the Term of Employment, the Company will maintain at its
cost, health, dental, life and long-term disability insurance for
the benefit of the Employee as the Company generally provides to its
employees (including eligibility for and matching contributions to a
401(k) plan in accordance with the Company's policies).
During the Term of Employment, the Employee shall be entitled to
participate in or receive benefits under any other employee benefit
plan generally made available by the Company to its executive
officers, subject to and on a basis consistent with the terms,
conditions and overall administration of such plans or arrangements
for individuals at such level. It is however understood that the
determination of what is "generally made available by the Company"
will be at the good faith discretion of the Company.
4.1 Expenses.
The Company shall reimburse the Employee for all reasonable travel
and other business expenses incurred by the Employee in the
performance of his duties under this Agreement, upon the Employee's
submission of appropriately itemized documentation thereof in
accordance with the Company's reimbursement policy.
4.2 Disability
(a) If the Company determines in good faith, after considering all
relevant medical evidence, that the Employee has incurred a
Disability (as defined below) during the Term of Employment,
the Company may give the Employee written notice of termination
of the Employee's employment ("Disability Termination"). In
such event, the Employee's employment with the Company shall
terminate as of three business days following the issuing of
such notice by the Company. In the event of Disability
Termination the Company shall pay to the Employee, as soon as
practicable after the close of the Company's fiscal quarter in
which such Disability Termination occurs, any accrued and
unpaid Incentive Bonus Compensation for the quarter prior to
the quarter in which Disability Termination occurs plus a
prorated portion of any unpaid Incentive Bonus Compensation to
which he would have been entitled for the quarter in which the
Disability Termination occurs. This subsection shall not limit
the entitlement of the Employee to any disability or other
benefits then available to the Employee under any benefit plan
or policy which is maintained by the Company for the Employee's
benefit.
(b) For the purpose of this Section, "Disability" shall mean
the Employee's failure to perform his duties to the
Company (and Netect as applicable) on a full-time basis
for a total of at least three consecutive months during
any twelve-month period, as a result of incapacity due to
a mental or physical illness or injury, as confirmed by a
physician selected by the Board of Directors of the
Company.
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5 Vacation
The Employee shall be entitled to annual vacation leave in
accordance with the Company's vacation policy for executive officers
of the Company.
6 Term and Termination
(a) Term. The "Term of Employment", as used herein, shall mean
a period commencing on the date hereof and ending on a
date that is the earlier to occur of (A) the receipt by
the Employee of a written notice of termination by the
Company given to the Employee ("Termination Without
Cause") or (B) the occurrence of an event specified in
Section 4.2, 6(c) or 6(d); provided, however, that the
occurrence of any of the events set forth in Section 4.2
or this Section 6 shall result in the immediate
termination of the Term of Employment, but shall not
result in the termination of this Agreement.
(b) Termination Without Cause. The Company may terminate the Term
of Employment hereunder at its sole discretion at any time,
with or without cause; provided, however, that if the Company
terminates the Term of Employment (including by notice pursuant
to clause (a)) other than (y)"For Cause" (as hereinafter
defined) or (z) upon Disability of the Employee, the Company
shall (i) promptly pay to the Employee all accrued but unpaid
Annual Base Salary, (ii) pay to the Employee as soon as
practicable after the close of the Company's fiscal quarter in
which such termination occurs, any accrued and unpaid Incentive
Bonus Compensation for the quarter prior to the quarter in
which termination occurs plus a prorated portion of any unpaid
Incentive Bonus Compensation to which he would have been
entitled for that quarter, and (iii) subject to both the
execution by the Employee of a release in a form reasonably
satisfactory to the Company and the continued compliance with
the terms of this Agreement that are intended to remain
applicable after termination of the Term of Employment,
continue to pay to the Employee his Annual Base Salary, based
on the Annual Base Salary level in effect immediately prior to
the termination, in monthly payments, for a period of 12 months
(hereinafter the "Severance Period"). During the Severance
Period, the Employee shall be entitled to retain his medical
and other health benefits (to the extent permitted under the
Company's benefit plans).
(c) Death. The Employee's Term of Employment hereunder and this
Agreement shall automatically terminate upon Employee's death.
In the case of the Employee's death, the Company shall pay to
the Employee's beneficiaries or estate, as appropriate: (i)
promptly after the Employee's death, all earned but unpaid
Annual Base Salary to which he is entitled pursuant to
subsection 3(a), and (ii) as soon as practicable after the
close of the Company's fiscal quarter in which the Employee's
death occurs, any accrued and unpaid Incentive Bonus
Compensation for the quarter prior to the quarter in which
death occurs plus a prorated portion of any unpaid Incentive
Bonus Compensation to which he would have been entitled for
that quarter. This subsection 6(b) shall not limit the
entitlement of the Employee's estate or beneficiaries to any
death or other benefits then available to the Employee under
any benefit plan or policy which is maintained by the Company
for the Employee's benefit.
(d) For Cause. The Company may terminate Employee's Term of
Employment with the Company without any payment, other
than any accrued and unpaid portion of the Annual Base
Salary, or any benefits in any or all of the following
cases ("For Cause"):
(i) any actions taken by the Employee not in good faith
against the material interests of the Company or
Netect;
(ii) the conviction of the Employee in respect of an
offense involving dishonesty and/or a felony
with respect to his activities with the Company
or Netect; or
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(iii) any other material breach by the Employee of
this Agreement, provided that the Company first
notifies the Employee of the specific breach
committed by him and the Employee is given sixty
(60) days to cure such material breach.
In cases (i) and (ii) above the Employee's Term of
Employment shall terminate immediately upon written notice
from the Company. In case (iii), the Employee's Term of
Employment shall terminate upon the expiration of the
period mentioned therein.
(f) For Good Reason. The Employee may terminate his Term of
Employment at any time for Good Reason (as defined below) or
otherwise.
(iv) If the Employee terminates his Term of Employment for Good Reason,
he shall be entitled to receive the same compensation he would
otherwise have received had the Company terminated his Term of
Employment pursuant to clause 6(b) above other than (y) For Cause or
(z) upon Disability of the Employee.
(v) If the Employee resigns or otherwise terminates his Term of
Employment other than for Good Reason , he shall not be entitled to
any payment, other than any accrued and unpaid portion of the Annual
Base Salary and any accrued and unpaid Incentive Bonus Compensation
for the quarter prior to the quarter in which the resignation or
termination occurs, or any benefits otherwise provided for pursuant
to this Agreement.
(vi) "Good Reason" shall mean
(A) the Company reduces the Employee's
Annual Base Salary or materially
reduces his responsibility or duties
with the Company, or
(B) the nonvoluntary relocation by the Company
of the Employee from the Boston area, or
(C) any material breach by the Company of
its obligations hereunder, which
breach is not cured within fifteen
(15) business days of the Employee's
notice thereof.
(f) Company Property. Upon termination of the Employee's Term
of Employment, the Employee shall transfer his position to
a replacement in an orderly and efficient manner and shall
return to the Company and Netect all documents,
literature, equipment, computer hardware and software and
other equipment belonging to or prepared for the Company
or Netect, in the same condition (ordinary wear and tear
excepted) as when delivered to him.
7 Pooling. Notwithstanding anything herein to the contrary, Employee
agrees not to take any action that in the opinion of the
Company's independent certified public accountants could
reasonably be expected to jeopardize the accounting treatment
of any transactions that are pending or completed during the
Term of Employment and for which the Company proposed to
account therefor as a "pooling of interests" transaction.
8 Confidentiality
(b) Information. The Employee agrees that the Information (as
defined below) shall be kept confidential and shall not,
without the prior written consent of the Company, be disclosed
or furnished to any person, corporation or other business
organization. The Employee further agrees to use the
Information only in the course of the performance of his duties
to the Company. "Information" shall mean all information, both
oral and written, which is non-public, confidential or
proprietary in nature, including without limitation, software,
source codes, technical information, financial data, business
strategies, product development, product data, processes,
techniques, procedures, customer lists, marketing plans and
other proprietary information used by the Company or by Netect
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Ltd. or by Netect or any of the Company's other subsidiaries or
pertaining to its/their business. Information shall not include
information which (i) is or becomes generally available to the
public other than as a result of disclosure by the Employee or
(ii) is required to be disclosed by law or applicable legal
process (in which case the Employee will consult with the
Company on an ongoing basis in order to legally minimize the
amount of Information disclosed).
(c) Inventions. All processes, technologies, inventions, discoveries,
applications, improvements, ideas, trade names and trademarks
(collectively, "Inventions"), which are conceived, originated,
developed or acquired by the Employee as a result of or in
connection with his engagement or affiliation with the Company
or any of its subsidiaries, alone or with others, during the
Employee's employment with the Company or any of its
subsidiaries, whether or not patentable and whether or not
conceived, originated or developed on the Company's or any of
its subsidiaries' time or with the use of the Company's or any
of its subsidiaries' facilities or materials, shall be the sole
and exclusive property of the Company and shall be promptly and
fully disclosed by the Employee to the Company. It is
understood that such Inventions are proprietary in nature and
shall (as between the Company and Employee) be for the
exclusive use and benefit of the Company.
(c) Survival. The provisions of this Section 8 shall survive the
termination of the Term of Employment and the termination of
this Agreement.
9 Non-Competition.
The Employee agrees that, during the Term of Employment with the
Company, and for a period of twelve (12) months thereafter, the
Employee shall not, directly or indirectly:
(a) anywhere in the world be employed by, engaged in, connected
with, or own, share in the earnings of, or invest in the
securities of any person, partnership, corporation or other
business organization that is engaged in a business which is in
direct competition to that in which the Company or any of its
subsidiaries is engaged or is actively contemplating engaging
during the Term of his Employment or at the time of termination
of the Term of Employment, provided, however, that (i) the
Employee may invest in the securities of any business
organization engaging in a similar business as that of the
Company's or any of its subsidiaries if such securities are
listed on any securities exchange and the Employee's investment
does not exceed 10% of the issued and outstanding securities of
such business organization, and Employee does not have any
participation in the control of such business organization,
and/or (ii) if the Employee wishes to be engaged by or
connected with any department in any business organization
which is in direct competition with the Company or any of its
subsidiaries, and such department is not in itself in direct
competition with the Company nor would the Employee's
engagement/connection with such department involve the use of
any Information (as defined in Section 8 above), then the
Employee may apply to the Company for the Company's consent to
such engagement/connection with such department, which consent
shall not be unreasonably withheld; or
(b) hire, engage, employ or solicit, contact or communicate
with for the purpose of hiring, employing or engaging, any
person, firm, corporation or other business organization
who or which at any time during his employment with the
Company or any of its subsidiaries was an employee,
consultant, advisor, client, or in the habit of dealing
with the Company or any of its subsidiaries and, other
than with respect to employees of the Company or any of
its subsidiaries, which was engaged in or associated with
a business which is in direct competition with that of the
Company or any of its subsidiaries.
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10 Remedies.
The Employee acknowledges that the provisions and limitations set
forth in Sections 8 and 9 of this Agreement are necessary for the
protection of the Company and are reasonable in light of the
activities and business of the Company. Employee further
acknowledges that (i) the Employee will be able to support himself
without violating such covenant and (ii) the Employee has been
advised by his legal counsel as to the meaning and consequences of
such covenant. The Employee acknowledges that the Company will have
no adequate remedy at law if the Employee breaches any of the
provisions of Sections 8 or 9 of this Agreement. In such event, the
Company shall have the right, in addition to any other rights it may
have, to obtain in any court of competent jurisdiction injunctive
relief to restrain any breach or threatened breach of or otherwise
to specifically enforce any of the provisions of said sections.
Further, if a court or arbitrator of competent jurisdiction finds
the scope, time or geographical restrictions in Sections 8 or 9 of
this Agreement to be unreasonable, it is the intention of the
parties that such restrictions shall be enforced to the fullest
extent to which such court or arbitrator deems reasonable, and such
provisions shall thereby be reformed.
11 Indemnification
The Company shall, subject to any legal impediment, indemnify the
Employee against all legal actions to the fullest extent permitted
under the Company's Certificate of Incorporation.
The provisions of this Section shall survive the Term of Employment
and the termination and expiration of this Agreement for any reason,
except for any matter which gave rise to Termination For Cause.
12. The Company will take commercially reasonable steps to assist the
Employee in obtaining a "green card" and shall bear all reasonable
and customary costs related thereto.
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14 General
14.1 Notice. All notices or other communications provided for by this
Agreement, will be given in writing, either by personal delivery;
registered mail, postage prepaid; overnight courier services; or by
facsimile transmission to the party at their last known address or
number. All notices or communications given by courier will be
deemed delivered on the third business day after the sending
thereof; those given by personal delivery or by facsimile
transmission will be deemed delivered on the next business day
following transmission or delivery; and those given by mail will be
deemed delivered on the fifth business day after posting.
14.2 Severability. The invalidity of all or part of any Section of this
Agreement shall not render invalid the remainder of this Agreement
or the remainder of such Section. If any provision of this Agreement
is so broad as to be unenforceable, such provision shall be
interpreted to be only so broad as is enforceable.
14.3 Further Assurances. Each party will cooperate, take such further
reasonable action and execute and deliver such further documents as
may be reasonably requested by the other in order to effectuate the
intent and purposes of this Agreement.
14.4 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Company and its successors and assigns.
Neither this Agreement nor any right or interest hereunder shall be
assignable or transferable by the Employee. This Agreement shall
inure to the benefit of and be enforceable by the Employee's lawful
personal representative.
14.5 Waiver. No provision of this Agreement may be modified, waived or
discharged unless such modification, waiver or discharge is agreed
to in writing and signed by the Employee and the Company. No waiver
by either party at any time of any breach by the other party of, or
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non-compliance with, any condition or provision of this Agreement
shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
14.6 Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Texas.
14.8 Arbitration. Any dispute between the parties relating to or arising
out of, the provisions of this Agreement (other than Sections 8 and
9, which disputes may be litigated in a court of competent
jurisdiction) will be referred exclusively to arbitration in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association. The parties shall appoint a single
arbitrator selected by mutual consent, and failing such consent
within twenty days from the date on which a party first requested
arbitration - the arbitrator will be appointed by the American
Arbitration Association. The arbitrator will be bound by Texas
substantive law but will not be bound by the rules of evidence or
civil procedure. The arbitrator will be required to provide the
grounds for his ruling in writing. Any arbitration proceedings shall
be held in Houston, Texas.
14.8 Entire Agreement. This Agreement constitutes the entire employment
agreement between the parties and supersedes all prior agreements,
understandings and arrangements, oral or written, between the
parties hereto with respect to the subject matter hereof.
14.9 Representation by the Company. The Company hereby represents and
warrants that (i) the person who has executed this Agreement on its
behalf is duly authorized to do so; (ii) the Company has full
corporate power and authority to enter into and perform its
obligations under this Agreement; and (iii) the execution by the
Company of this Agreement has been duly authorized and approved by
all necessary corporate action.
IN WITNESS WHEREOF, the Company and Netect have caused this Agreement to be
duly executed and the Employee has duly executed this Agreement as of the day
and year first written above.
Netect Inc.
By: /s/ Xxxx X. Xxxxxxx /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx Xxxx X. Xxxxxxx
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Title: President
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BindView Development Corporation
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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Title: President
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