exv10w67



 






Exhibit 10.67



Executive: Shekar Ayyar



BindView Corporation



First Amended and Restated

Executive Employment Agreement


THIS FIRST AMENDED AND RESTATED 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 set forth in Schedule 1 as the Effective Date. This Agreement replaces and supersedes any
and all prior employment agreements between the Company and the Executive, but does not supersede
or replace stock-option agreements, Benefit-related agreements, and the like.





	1.  	BACKGROUND.
	 
	1.1  	The Executive currently holds, or is being hired for, a senior executive position with the
Company. As a result, the Executive has, or is expected to have, significant responsibility
for the Company’s management, profitability and growth. Likewise, the Executive possesses, or
is expected to acquire, 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.









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Exhibit 10.67



Executive: Shekar Ayyar






	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










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Exhibit 10.67



Executive: Shekar Ayyar





	 	   	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 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.









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Exhibit 10.67



Executive: Shekar Ayyar






	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 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










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Exhibit 10.67



Executive: Shekar Ayyar






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.






	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










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Exhibit 10.67



Executive: Shekar Ayyar






	 	(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.
	 
	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.











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Exhibit 10.67



Executive: Shekar Ayyar



	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.
	 
	 	(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










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Exhibit 10.67



Executive: Shekar Ayyar






	 	   	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 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.










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Exhibit 10.67



Executive: Shekar Ayyar






	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 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










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Exhibit 10.67



Executive: Shekar Ayyar






	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 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.










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Exhibit 10.67



Executive: Shekar Ayyar






	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.
	 
	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 Bind










	FIRST AMENDED AND RESTATED EXECUTIVE EMPLOYMENT
AGREEMENT	PAGE 11











 





Exhibit 10.67



Executive: Shekar Ayyar






View 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 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).










	FIRST AMENDED AND RESTATED EXECUTIVE EMPLOYMENT
AGREEMENT	PAGE 12











 





Exhibit 10.67



Executive: Shekar Ayyar






	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.
	 
	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










	FIRST AMENDED AND RESTATED EXECUTIVE EMPLOYMENT
AGREEMENT	PAGE 13











 





Exhibit 10.67



Executive: Shekar Ayyar






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 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.










	FIRST AMENDED AND RESTATED EXECUTIVE EMPLOYMENT
AGREEMENT	PAGE 14











 





Exhibit 10.67



Executive: Shekar Ayyar






	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).
	 
	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.










	FIRST AMENDED AND RESTATED EXECUTIVE EMPLOYMENT
AGREEMENT	PAGE 15











 





Exhibit 10.67



Executive: Shekar Ayyar






	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.





(Continued on next page)









	FIRST AMENDED AND RESTATED EXECUTIVE EMPLOYMENT
AGREEMENT	PAGE 16











 





Exhibit 10.67



Executive: Shekar Ayyar





Schedule 1




	 	 	 
	Effective Date

	 	July 19, 2004
	 
	 	 
	Office

	 	Senior Vice President
	 
	 	 
	Position

	 	Responsible for Product Marketing
	 
	 	 
	Base Salary

	 	Initially, $190,000 per year
($15,833.33 per month, with first month
pro-rated). Effective April 1, 2005,
minimum annual base compensation will be
$200,000 ($16,666.67 per month).
	 
	 	 
	Bonus Potential At Target

	 	Initially, $190,000 per year. Any
bonus for 2004 will be pro-rated on a
360-day year, reduced by $50,000 (the
amount of the signing bonus below), and
tied solely to the Executive’s achievement
of his individual management objectives set
by the Company. Effective April 1, 2005,
the Executive’s Bonus Potential At Target
will be $200,000 (pro-rated for 2005).
	 
	 	 
	Signing bonus

	 	$50,000, to be paid as additional
compensation when the Executive starts work
for the Company, in anticipation of the
Executive’s continuing to work for the
Company at least six (6) months. The
Executive shall not be obligated to repay
any portion of the signing bonus, nor to
pay any interest thereon, nor to execute a
promissory note or similar instrument
concerning the signing bonus, except as
provided in the next sentence. If, at any
time during the six (6) months following
the Effective Date, either (i) the
Executive resigns other than for Good
Reason or (ii) the Company terminates the
Executive’s employment for Cause, then the
Executive shall forfeit a pro-rata portion
of the signing bonus and agrees to repay it
to the Company, without interest, within 10
business days thereafter. HYPOTHETICAL
EXAMPLE: If the Executive were to resign
for other than Good Reason effective
October 19, 2004, then he would forfeit 3/6
= 1/2 of the signing bonus and therefore
would be required to repay the Company the
sum of $25,000 by November 2, 2004.

	 
	 	 
	Temporary housing

allowance

	 	$5,000 per month, until the earlier of
(i) the Executive’s six-month anniversary with the Company or (ii) the date the
Executive relocates to Houston.
	 
	 	 
	Relocation expenses

	 	The Company will reimburse the
Executive for up to $100,000 of actual
expenses incurred in selling his
California residence, buying a Houston
residence, normal and reasonable expenses
related to moving family and household
goods from California to Houston, and
normal and reasonable travel expenses for
house hunting trips during the first year
of employment. All relocation expenses
reimbursed by the Company are subject to
pro-rata forfeiture as set forth above for
the signing bonus, except (i) the period of
pro-ration shall be 36 months instead of
six months; and (ii) the Executive need not
forfeit any portion of such relocation
expense reimbursements if he resigns in any
circumstances entitling him to Special
Severance Benefits under Section 3.3(b)(3)
of the Change of Control Agreement having
an effective date contemporaneous with that
of this Agreement.
	 
	 	 
	Minimum annual vacation

	 	20 business days
	 
	 	 
	Other specific benefits

	 	Reserved parking space
	 
	 	 
	Non-interfering

activities

	 	The Company agrees that the
Executive’s service on the advisory board
of his former employer, Instantis, Inc.
shall not be a breach of this Agreement,
provided that such service does not
interfere with the Executive’s performance
of his duties.











	FIRST AMENDED AND RESTATED EXECUTIVE EMPLOYMENT
AGREEMENT	PAGE 17











 





Exhibit 10.67



Executive: Shekar Ayyar




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
	 	 	 
	 	 	 
	 
	 	 
	 

	 	 
	Edward L. Pierce,

	 	Signature
	Executive Vice President
	 	 
	and Chief Financial Officer
	 	 
	 
	 	 
	Date signed:

	 	Date signed:
	 

	 	 










	FIRST AMENDED AND RESTATED EXECUTIVE EMPLOYMENT
AGREEMENT	PAGE 18











 






Exhibit 10.67



Executive: Shekar Ayyar




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 sue 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:










	FIRST AMENDED AND RESTATED EXECUTIVE EMPLOYMENT
AGREEMENT	PAGE 19











 





Exhibit 10.67



Executive: Shekar Ayyar






	 	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
	 
	 	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











	FIRST AMENDED AND RESTATED EXECUTIVE EMPLOYMENT
AGREEMENT	PAGE 20