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Exhibit 99.2
FORM OF EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into between BGS
Systems, Inc., a Massachusetts corporation having offices at One First Avenue,
Waltham, Massachusetts 02254 ("Employer"), and _________________, an individual
currently residing at _____________________________ ("Employee"), to be
effective as of the earlier of (a) the termination of Employee's employment by
Employer and (b) the Effective Time of the Merger. Capitalized terms not
otherwise defined herein shall have the meaning ascribed thereto in the Merger
Agreement.
WHEREAS, Employee will receive substantial consideration as a result of
the merger (the "Merger") of Ranger Acquisition Corp., a Massachusetts
corporation, with and into Employer, resulting in Employer becoming a wholly
owned subsidiary of BMC Software, Inc., a Delaware corporation ("Parent"),
pursuant to the Agreement and Plan of Reorganization and related documentation
(the "Merger Agreement") which is being entered into contemporaneously with this
Agreement among Employer, Parent, and Ranger Acquisition Corp.;
For and in consideration of the mutual promises, covenants, and
obligations contained herein, Employer and Employee agree as follows:
1. EMPLOYMENT AND DUTIES:
1.1 Employer agrees to employ Employee, and Employee agrees to be
employed by Employer, beginning the Effective Time and continuing throughout the
Term (as defined below) of this Agreement, subject to the terms and conditions
of this Agreement.
1.2 Employee shall serve in such position as directed by the Board
of Directors of Employer. Employee agrees to serve in the assigned position and
to perform diligently and to the best of Employee's abilities the duties and
services appertaining to such position as determined by Employer, as well as
such additional or different duties and services appropriate to such position
which Employee from time to time may be reasonably directed to perform by
Employer. Employee shall at all times comply with and be subject to such
policies and procedures as Employer may establish from time to time.
1.3 Employee shall, during the period of Employee's employment by
Employer, devote one-half of Employee's business time and energy, and his best
efforts to the business and affairs of Employer. During such period of
employment, Employee may not engage, directly or indirectly, in any other
business, investment, or activity that interferes with Employee's performance of
Employee's duties hereunder, is contrary to the interests of Employer or any of
its subsidiaries or affiliates, or requires significantly more than one-half of
Employee's business time; provided, however, that Employee may engage in passive
personal investments that do not conflict with the business and affairs of the
Employer or any of its subsidiaries or affiliates or interfere with Employee's
performance of his or her duties hereunder.
1.4 Employee acknowledges and agrees that Employee owes a fiduciary
duty of loyalty, fidelity and allegiance to act at all times in the best
interests of Employer or any of its
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subsidiaries or affiliates and to do no act which would injure the business,
interests, or reputation of Employer or any of its subsidiaries or affiliates.
In keeping with these duties, Employee shall make full disclosure to Employer of
all business opportunities pertaining to Employer's business and shall not
appropriate for Employee's own benefit business opportunities concerning the
subject matter of the fiduciary relationship.
1.5 It is agreed that any direct or indirect interest in, connection
with, or benefit from any outside activities, particularly commercial
activities, which interest might in any way adversely affect Employer, or any of
its affiliates, involves a possible conflict of interest. In keeping with
Employee's fiduciary duties to Employer, Employee agrees that Employee shall not
knowingly become involved in a conflict of interest with Employer, or its
affiliates, or upon discovery thereof, allow such a conflict to continue.
Moreover, Employee agrees that Employee shall disclose to Employer's General
Counsel (who shall be the General Counsel of Parent) any facts which might
involve such a conflict of interest that has not been approved by Employer's
President. Employer and Employee recognize that it is impossible to provide an
exhaustive list of actions or interests which constitute a "conflict of
interest". Moreover, Employer and Employee recognize there are many borderline
situations. In some instances, full disclosure of facts by Employee to
Employer's General Counsel may be all that is necessary to enable Employer or
its subsidiaries or affiliates to protect its interests. In others, if no
improper motivation appears to exist and the interests of Employer or its
subsidiaries or affiliates have not suffered, prompt elimination of the outside
interest will suffice. In still others, it may be necessary for Employer to
terminate the employment relationship. Employee agrees that Employer's
determination as to whether a conflict of interest exists shall be conclusive.
Employer reserves the right to take such action as, in its judgment, will end
the conflict.
2. COMPENSATION AND BENEFITS:
2.1 Employee's initial base salary under this Agreement shall be the
prorated equivalent of $275,000 per annum (or $137,500 for half-time employment)
and shall be paid in semi-monthly installments in accordance with Employer's
standard payroll practice. Employee's base salary may be increased from time to
time by Employer and, after any such change, Employee's new level of base salary
shall be Employee's base salary for purposes of this Agreement until the
effective date of any subsequent change.
2.2 Employee's participation in bonus plans in excess of the
compensation received pursuant to Section 2.1, if any, shall be determined by
the compensation committee of the Board of Directors of Employer in its sole
discretion.
2.3 If Employee is granted stock options, Employee will enter into a
separate written stock option agreement pursuant to which Employee shall be
granted the option to acquire common stock of Employer or Parent subject to the
terms and conditions of Employer's or Parent's employee option or incentive plan
and the stock option agreement entered into thereunder. The number of shares,
exercise price per share and other terms of the options shall be as specified in
such other written agreement.
2.4 While employed by Employer, Employee shall be allowed to
participate, on the same basis generally as other employees of Employer, in all
general employee benefit plans and
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programs, including improvements or modifications of the same, which on the
effective date or thereafter are made available by Employer to all or
substantially all of Employer's employees. Such benefits, plans, and programs
may include, without limitation, medical, health, and dental care, life
insurance, disability protection, and pension plans. Nothing in this Agreement
is to be construed or interpreted to provide greater rights, participation,
coverage, or benefits under such benefit plans or programs than provided to
similarly situated employees pursuant to the terms and conditions of such
benefit plans and programs.
2.5 Employer shall not by reason of this Article 2 be obligated to
institute, maintain, or refrain from changing, amending, or discontinuing, any
incentive compensation or employee benefit program or plan, so long as such
actions are similarly applicable to covered employees generally. Moreover,
unless specifically provided for in a written plan document adopted by the Board
of Directors of Employer, none of the benefits or arrangements described in this
Article 2 shall be secured or funded in any way, and each shall instead
constitute an unfunded and unsecured promise to pay money in the future
exclusively from the general assets of Employer and its subsidiaries and
affiliates.
2.6 Employer may withhold from any compensation, benefits, or
amounts payable under this Agreement all federal, state, city, or other taxes as
may be required pursuant to any law or governmental regulation or ruling.
3. TERM OF THIS AGREEMENT, EFFECT OF EXPIRATION OF TERM, AND TERMINATION
PRIOR TO EXPIRATION OF TERM AND EFFECTS OF SUCH TERMINATION:
3.1 The term of this Agreement shall be for three (3) years from the
Effective Time. Should Employee remain employed by Employer beyond the
expiration of the Term, such employment shall convert to a month-to-month
relationship terminable at any time by either Employer or Employee for any
reason whatsoever, with or without cause, upon thirty days notice. Upon such
termination of the continued at-will employment relationship by either Employer
or Employee for any reason whatsoever, all future compensation to which Employee
is entitled and all future benefits for which Employee is eligible shall cease
and terminate. Employee shall be entitled to pro rata salary through the date of
such termination, but Employee shall not be entitled to any bonus with respect
to the operations of the Employer and its subsidiaries and affiliates during the
calendar year in which Employee's employment with Employer is terminated. Upon
termination of employment, Employee shall repay to Employer all advances
received by Employee from Employer or any of its subsidiaries or affiliates,
including all advances drawn against any bonus.
3.2 Notwithstanding any other provisions of this Agreement, Employer
shall have the right to terminate Employee's employment under this Agreement at
any time for any of the following reasons:
(i) For "cause" upon the determination by Employer's Board of
Directors that "cause" exists for the termination of the
employment relationship. As used in this Section 3.2(i), the term
"cause" shall mean (a) Employee has engaged in gross negligence,
gross incompetence or willful misconduct in the performance of,
or
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Employee's willful refusal without proper reason to perform, the
duties and services required of Employee pursuant to this
Agreement; (b) Employee has been convicted of a felony; or (c)
Employee's material breach of any material provision of this
Agreement or corporate code or policy which remains uncorrected
for thirty (30) days following written notice of such breach to
Employee. It is expressly acknowledged and agreed that the
decision as to whether "cause" exists for termination of the
employment relationship by Employer is delegated to Employer's
Board of Directors for determination. Employee, if he so
requests, after reasonable notice of such Board of Directors
meeting, shall be entitled to be heard before the Board of
Directors. If Employee disagrees with the decision reached by
Employer's Board of Directors, the dispute will be limited to
whether Employer's Board of Directors reached its decision in
good faith;
(ii) for any other reason whatsoever, including termination without
cause, in the sole discretion of Employer's Board of Directors;
(iii) upon Employee's death; or
(iv) upon Employee's becoming incapacitated by accident, sickness, or
other circumstance which in the reasonable opinion of a qualified
doctor approved by Employer's Board of Directors renders him
mentally or physically incapable of performing the duties and
services required of Employee, and which will continue in the
reasonable opinion of such doctor for a period of not less than
180 days.
The termination of Employee's employment shall constitute a "Termination for
Cause" if made pursuant to Section 3.2(i); the effect of such termination is
specified in Section 3.4. The termination of Employee's employment shall
constitute an "Involuntary Termination" if made pursuant to Section 3.2(ii); the
effect of such termination is specified in Section 3.5. The effect of the
employment relationship being terminated pursuant to Section 3.2(iii) as a
result of Employee's death is specified in Section 3.7. The effect of the
employment relationship being terminated pursuant to Section 3.2(iv) as a result
of the Employee becoming incapacitated is specified in Section 3.8.
3.3 Notwithstanding any other provisions of this Agreement, Employee
shall have the right to terminate the employment relationship under this
Agreement at any time for any of the following reasons:
(i) a material breach by Employer of any material provision of this
Agreement, which remains uncorrected for 30 days following
written notice of such breach by Employee to Employer's Board of
Directors;
(ii) the dissolution of Employer; or
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(iii) for any other reason whatsoever, in the sole discretion of
Employee.
The termination of Employee's employment by Employee shall constitute an
"Involuntary Termination" if made pursuant to Section 3.3(i) or 3.3(ii); the
effect of such termination is specified in Section 3.5. The termination of
Employee's employment by Employee shall constitute a "Voluntary Termination" if
made pursuant to Sections 3.3(iii); the effect of such termination is specified
in Section 3.4.
3.4 Upon a "Voluntary Termination" of the employment relationship by
Employee or a termination of the employment relationship for "Cause" by
Employer, all future compensation to which Employee is entitled and all future
benefits for which Employee is eligible shall cease and terminate as of the date
of termination. Employee shall be entitled to pro rata salary through the date
of such termination, but Employee shall not be entitled to any bonuses with
respect to the operations of the Employer and its subsidiaries and affiliates
during the calendar year in which Employee's employment with Employer is
terminated.
3.5 Upon an Involuntary Termination of the employment relationship
by either Employer or Employee pursuant to Sections 3.2(ii) or 3.3(i), Employee
shall be entitled, in consideration of Employee's continuing obligations
hereunder after such termination (including, without limitation, Employee's
non-competition obligations), to receive the compensation specified in Section
2.1 only, payable bi-weekly, as if Employee's employment (which shall cease on
the date of such Involuntary Termination) had continued for the full Term of
this Agreement. Upon an Involuntary Termination of the employment relationship
by Employee pursuant to Sections 3.3(ii), Employee shall be entitled, in
consideration of Employee's continuing obligations hereunder after such
termination (including, without limitation, Employee's non-competition
obligations), to receive in a lump sum payment the compensation specified in
Section 2.1 as if Employee's employment (which shall cease on the date of such
Involuntary Termination) had continued for the full Term of this Agreement.
Employee shall not be under any duty or obligation to seek or accept other
employment following Involuntary Termination and the amounts due Employee
hereunder shall not be reduced or suspended if Employee accepts subsequent
employment. Employee's rights under this Section 3.5 are Employee's sole and
exclusive rights against Employer or its subsidiaries or affiliates, and
Employer's and its subsidiaries' and affiliates' sole and exclusive liability to
Employee under this Agreement, in contract, tort, or otherwise, for any
Involuntary Termination of the employment relationship.
3.6 Employee covenants not to sue or lodge any claim, demand or
cause of action against Employer based on Involuntary Termination for any monies
other than those specified in Section 3.5. If Employee breaches this covenant,
Employer, and its subsidiaries' and affiliates' shall be entitled to recover
from Employee all sums expended by Employer, and its subsidiaries and affiliates
(including costs and attorneys' fees) in connection with such suit, claim,
demand or cause of action. Employer and its subsidiaries and affiliates shall
not be entitled to offset any of the amounts specified in the immediately
preceding sentence against amounts otherwise owing by Employer and its
subsidiaries and affiliates to Employee prior to a final determination under the
terms of the arbitration provisions of this Agreement that Employee has breached
the covenant contained in this Section 3.6.
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3.7 Upon termination of the employment relationship as a result of
Employee's death, Employee's heirs, administrators, or legatees shall be
entitled to Employee's pro rata salary through the date of such termination, but
Employee's heirs, administrators, or legatees shall not be entitled to any
individual bonuses with respect to the operations of the Employer and its
subsidiaries and affiliates during the calendar year in which Employee's
employment with Employer is terminated.
3.8 Upon termination of the employment relationship as a result of
Employee's incapacity, Employee shall be entitled to his pro rata salary through
the date of such termination, but Employee shall not be entitled to any
individual bonuses with respect to the operations of the Employer and its
subsidiaries and affiliates during the calendar year in which Employee's
employment with Employer is terminated.
3.9 In all cases, the compensation and benefits payable to Employee
under this Agreement upon termination of the employment relationship shall be
reduced and offset by any amounts to which Employee may otherwise be entitled
under any and all severance plans (excluding any pension, retirement and profit
sharing plans of Employer that may be in effect from time to time) or policies
of Employer or its subsidiaries or affiliates or any successor to all or a
portion of the business or assets of Employer.
3.10 Termination of the employment relationship shall not terminate
those obligations imposed by this Agreement which are continuing in nature,
including, without limitation, Employee's obligations of confidentiality,
non-competition and Employee's continuing obligations with respect to business
opportunities that had been entrusted to Employee by Employer during the
employment relationship.
3.11 This Agreement governs the rights and obligations of Employer
and Employee with respect to Employee's salary and other perquisites of
employment.
4. UNITED STATES FOREIGN CORRUPT PRACTICES ACT AND OTHER LAWS:
4.1 Employee shall at all times comply with United States laws
applicable to Employee's actions on behalf of Employer and its subsidiaries and
affiliates, including specifically, without limitation, the United States
Foreign Corrupt Practices Act, generally codified in 15 USC 78 (FCPA), as the
FCPA may hereafter be amended, and/or its successor statutes. If Employee pleads
guilty to or nolo contendre or admits civil or criminal liability under the FCPA
or other applicable United States law, or if a court finds that Employee has
personal civil or criminal liability under the FCPA or other applicable United
States law, or if a court finds that Employee committed an action resulting in
Employer or any of its subsidiaries having civil or criminal liability or
responsibility under the FCPA or other applicable United States law, such action
or finding shall constitute "cause" for termination under this Agreement unless
Employer's Board of Directors determines that the actions found to be in
violation of the FCPA or other applicable United States law were taken in good
faith and in compliance with all applicable policies of Employer. Moreover, to
the extent that Employer or any of its subsidiaries is found or held responsible
for any civil or criminal fines or sanctions of any type under the FCPA or other
applicable United States law or suffers other damages as a result of Employee's
actions, Employee shall be responsible for, and shall reimburse and pay to such
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Employer an amount of money equal to, such civil or criminal fines, sanctions or
damages. The rights afforded Employer under this provision are in addition to
any and all rights and remedies otherwise afforded by the law.
5. OWNERSHIP AND PROTECTION OF INFORMATION; COPYRIGHTS:
5.1 Employer owns certain confidential and proprietary information
and trade secrets to which Employee will be given access for the purpose of
carrying out his or her employment responsibilities hereunder. Furthermore,
Employer agrees to provide Employee with confidential and proprietary
information and trade secrets regarding the Employer and its subsidiaries and
affiliates, in order to assist Employee in satisfying his or her obligations
hereunder.
5.2 All information, ideas, concepts, improvements, discoveries, and
inventions, whether patentable or not, which are conceived, made, developed or
acquired by Employee, individually or in conjunction with others, during
Employee's employment by Employer (whether during business hours or otherwise
and whether on Employer's premises or otherwise) which relate to Employer's or
any of its subsidiaries' or affiliates' businesses, products or services
(including, without limitation, all such information relating to corporate
opportunities, research, financial and sales data, pricing and trading terms,
evaluations, opinions, interpretations, acquisition prospects, the identity of
customers or their requirements, the identity of key contacts within the
customer's organizations or within the organization of acquisition prospects, or
marketing and merchandising techniques, prospective names, and marks) shall be
disclosed to Employer and are and shall be the sole and exclusive property of
Employer. Upon termination of Employee's employment, for any reason, Employee
promptly shall deliver the same, and all copies thereof, to Employer.
5.3 Employee will not, at any time during or after his employment by
Employer, make any unauthorized disclosure of any confidential business
information or trade secrets of Employer or its subsidiaries or affiliates, or
make any use thereof, except in the carrying out of his employment
responsibilities hereunder. As a result of Employee's employment by Employer,
Employee may also from time to time have access to, or knowledge of,
confidential business information or trade secrets of third parties, such as
customers, suppliers, partners, joint venturers, and the like, of Employer and
its subsidiaries and affiliates. Employee also agrees to preserve and protect
the confidentiality of such third party confidential information and trade
secrets to the same extent, and on the same basis, as Employer's or any of its
subsidiaries' or affiliates' confidential business information and trade
secrets, unless and until such information is part of the public domain through
no fault of Employee.
5.4 If, during Employee's employment by Employer, Employee creates
any original work of authorship fixed in any tangible medium of expression which
is the subject matter of copyright (such as videotapes, written presentations on
acquisitions, computer programs, E-mail, voice mail, electronic databases,
drawings, maps, architectural renditions, models, manuals, brochures, or the
like) relating to Employer's, or any of its subsidiaries' or affiliates'
businesses, products, or services, whether such work is created solely by
Employee or jointly with others (whether during business hours or otherwise and
whether on Employer's or any of its subsidiaries' or affiliates' premises or
otherwise), Employer shall be deemed the author of such work if the work is
prepared by Employee in the scope of his or her employment; or, if the
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work is not prepared by Employee within the scope of his or her employment but
is specially ordered by Employer or any of its subsidiaries or affiliates as a
contribution to a collective work, as a part of a motion picture or other
audiovisual work, as a translation, as a supplementary work, as a compilation,
or as an instructional text, then the work shall be considered to be work made
for hire and Employer or any of its subsidiaries or affiliates shall be the
author of the work. If such work is neither prepared by Employee within the
scope of his or her employment nor a work specially ordered that is deemed to be
a work made for hire, then Employee hereby agrees to assign, and by these
presents does assign, to Employer all of Employee's worldwide right, title, and
interest in and to such work and all rights of copyright therein; PROVIDED,
HOWEVER, that materials prepared by Employee that are outside the scope of
Employee's employment and do not contain any confidential or proprietary
information or trade secrets of Employer may be retained and owned by Employee
after written consent from Employer.
5.5 Both during the period of Employee's employment by Employer and
thereafter, Employee shall assist Employer, or any of its subsidiaries or
affiliates and their nominees, at any time, in the protection of Employer's or
any of its subsidiaries' or affiliates' worldwide right, title, and interest in
and to information, ideas, concepts, improvements, discoveries, and inventions,
and its copyrighted works, including without limitation, the execution of all
formal assignment documents requested by Employer or any of its subsidiaries or
affiliates or their nominees and the execution of all lawful oaths and
applications for applications for patents and registration of copyright in the
United States and foreign countries.
6. POST-MERGER AND POST-EMPLOYMENT NON-COMPETITION OBLIGATIONS:
6.1 As part of the consideration received by Employee in the Merger
and as part of the consideration for the compensation and benefits to be paid
and extended to Employee hereunder, and as an additional incentive for Employer
to enter into the Merger Agreement, Employer and Employee agree to the
non-competition provisions of this Article 6. Employee agrees that without the
express written consent of Employer during the period of Employee's
non-competition obligations hereunder, Employee will not, directly or indirectly
for Employee or for others:
(i) engage in any software business involved in any of the systems
management disciplines generally understood to be monitoring,
event management, capacity planning and performance management in
the MVS, UNIX and Microsoft NT operating environments;
(ii) render advice or services to, or otherwise assist, any other
person, association, or entity who is engaged, directly or
indirectly, in any business described in clause (i) above;
(iii) encourage or induce any current or former employee of Employer or
any of its subsidiaries or affiliates to leave the employment of
Employer or any of its subsidiaries or affiliates or proselytize,
offer employment, retain, hire or assist in the hiring of any
such employee by any person, association, or entity not
affiliated with
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Employer or any of its subsidiaries or affiliates; provided,
however, that nothing in this subsection (iii) shall prohibit
Employee from offering employment to any prior employee of
Employer or any of its subsidiaries or affiliates who was not
employed by Employer or any of its subsidiaries or affiliates at
any time in the twelve (12) months prior to the termination of
Employee's employment.
The non-competition obligations set forth in subsections (i), (ii) and (iii) of
this Section 6.1 shall apply during Employee's employment and for a period
ending the later of one (1) year after termination of employment or three (3)
years after the Effective Time. It is understood that clauses (i) and (ii) above
shall not prevent Employee from (A) owning not more than 1% of the outstanding
stock of a publicly held company, (B) serving as a director of a company engaged
in the software business so long as its products and services are not
competitive with those of Employer or (C) engaging in non-commercial activities
in the systems management disciplines which do not involve the promotion of
software products competitive with those of Employer, including without
limitation conducting research; publishing books, technical papers and similar
materials; presenting educational seminars and courses and participating in
technical conferences and professional organizations and groups.
6.2 Employee understands that the foregoing restrictions may limit
his ability to engage in certain businesses anywhere in the world during the
period provided for above, but acknowledges that Employee will receive
sufficiently high remuneration and other benefits (e.g., the consideration to be
received by Employee in the Merger, the right to receive compensation under
Section 3.5 for the remainder of the Term upon Involuntary Termination and
access to certain confidential and proprietary information and trade secrets)
under this Agreement to justify such restriction. Employee acknowledges that
money damages would not be sufficient remedy for any breach of this Article 6 by
Employee, and Employer or any of its subsidiaries or affiliates shall be
entitled to enforce the provisions of this Article 6 by terminating any payments
then owing to Employee under this Agreement and/or to specific performance and
injunctive relief as remedies for such breach or any threatened breach, without
any requirement for the securing or posting of any bond in connection with such
remedies. Such remedies shall not be deemed the exclusive remedies for a breach
of this Article 6, but shall be in addition to all remedies available at law or
in equity to Employer or any of its subsidiaries or affiliates, including,
without limitation, the recovery of damages from Employee and his agents
involved in such breach.
6.3 It is expressly understood that the restrictions contained in
this Article 6 are related to and result from the agreements of Employer and
Employee in Article 5 and agreed that Employer and Employee consider the
restrictions contained in this Article 6 to be reasonable and necessary to
protect the confidential and proprietary information and trade secrets of
Employer and its subsidiaries and affiliates. Nevertheless, if any of the
aforesaid restrictions are found by a court having jurisdiction to be
unreasonable, or overly broad as to geographic area or time, or otherwise
unenforceable, the parties intend for the restrictions therein set forth to be
modified by such courts so as to be reasonable and enforceable and, as so
modified by the court, to be fully enforced.
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7. MISCELLANEOUS:
7.1 For purposes of this Agreement the terms "affiliates" or
"affiliated" means an entity who directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with
Employer.
7.2 Employee shall refrain, both during the employment relationship
and after the employment relationship terminates, from publishing any oral or
written statements about Employer or any of its subsidiaries' or affiliates'
directors, officers, employees, agents or representatives that are slanderous,
libelous, or defamatory; or that disclose private or confidential information
about Employer or any of its subsidiaries' or affiliates' business affairs,
officers, employees, agents, or representatives; or that constitute an intrusion
into the seclusion or private lives of Employer or any of its subsidiaries' or
affiliates' directors, officers, employees, agents, or representatives; or that
give rise to unreasonable publicity about the private lives of Employer or any
of its subsidiaries' or affiliates' officers, employees, agents, or
representatives; or that place Employer or its subsidiaries' or affiliates' or
its officers, employees, agents, or representatives in a false light before the
public; or that constitute a misappropriation of the name or likeness Employer
or any of its subsidiaries' or affiliates' or its officers, employees, agents,
or representatives. A violation or threatened violation of this prohibition may
be enjoined.
7.3 For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when personally delivered or when mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to Employer to:
BGS Systems, Inc.
c/o BMC Software, Inc.
2101 Citywest Blvd.
Houston, Texas 77042-2627
Attn: M. Brinkley Morse
with a copy to:
Vinson & Elkins L.L.P.
2300 First City Tower
1001 Fannin
Houston, Texas 77002-6760
Attn: John S. Watson
If to Employee, to the address shown on the first page hereof.
Either Employer or Employee may furnish a change of address to the other in
writing in accordance herewith, except that notices of changes of address shall
be effective only upon receipt.
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7.4 This Agreement shall be governed in all respects by the laws of
the Commonwealth of Massachusetts, excluding any conflict-of-law rule or
principle that might refer the construction of the Agreement to the laws of
another State or country.
7.5 No failure by either party hereto at any time to give notice of
any breach by the other party of, or to require 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.
7.6 It is a desire and intent of the parties that the terms,
provisions, covenants, and remedies contained in this Agreement shall be
enforceable to the fullest extent permitted by law. If any such term, provision,
covenant, or remedy of this Agreement or the application thereof to any person,
association, or entity or circumstances shall, to any extent, be construed to be
invalid or unenforceable in whole or in part, then such term, provision,
covenant, or remedy shall be construed in a manner so as to permit its
enforceability under the applicable law to the fullest extent permitted by law.
In any case, the remaining provisions of this Agreement or the application
thereof to any person, association, or entity or circumstances other than those
to which they have been held invalid or unenforceable, shall remain in full
force and effect.
7.7 Any and all claims, demands, cause of action, disputes,
controversies and other matters in question arising out of or relating to this
Agreement, any provision hereof, the alleged breach thereof, or in any way
relating to the subject matter of this Agreement, involving Employer, its
subsidiaries and affiliates and Employee (all of which are referred to herein as
"Claims"), even though some or all of such Claims allegedly are
extra-contractual in nature, whether such Claims sound in contract, tort or
otherwise, at law or in equity, under state or federal law, whether provided by
statute or the common law, for damages or any other relief, including equitable
relief and specific performance, shall be resolved and decided by binding
arbitration pursuant to the Federal Arbitration Act in accordance with the
Commercial Arbitration Rules then in effect with the American Arbitration
Association. In the arbitration proceeding the Employee shall select one
arbitrator, the Employer shall select one arbitrator and the two arbitrators so
selected shall select a third arbitrator. Should one party fail to select an
arbitrator within five days after notice of the appointment of an arbitrator by
the other party or should the two arbitrators selected by the Employee and the
Employer fail to select an arbitrator within ten days after the date of the
appointment of the last of such two arbitrators, any person sitting as a Judge
of the United States District Court located in The Commonwealth of
Massachusetts, upon application of the Employee or the Employer, shall appoint
an arbitrator to fill such space with the same force and effect as though such
arbitrator had been appointed in accordance with the immediately preceding
sentence of this Section 7.7. The decision of a majority of the arbitrators
shall be binding on the Employee, the Employer and its subsidiaries and
affiliates. The arbitration proceeding shall be conducted in Boston,
Massachusetts. Judgment upon any award rendered in any such arbitration
proceeding may be entered by any federal or state court having jurisdiction.
This agreement to arbitrate shall be enforceable in either federal or
state court. The enforcement of this agreement to arbitrate and all procedural
aspects of this Agreement to arbitrate, including but not limited to, the
construction and interpretation of this agreement to arbitrate, the scope of the
arbitrable issues, allegations of waiver, delay or defenses to
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arbitrability, and the rules governing the conduct of the arbitration, shall be
governed by and construed pursuant to the Federal Arbitration Act.
In deciding the substance of any such Claim, the Arbitrators shall
apply the substantive laws of The Commonwealth of Massachusetts; provided,
however, that the Arbitrators shall have no authority to award treble, exemplary
or punitive type damages under any circumstances regardless of whether such
damages may be available under Massachusetts law, the parties hereby waiving
their right, if any, to recover treble, exemplary or punitive type damages in
connection with any such Claims.
7.8 This Agreement shall be binding upon and inure to the benefit of
Employer its subsidiaries and affiliates and any other person, association, or
entity which may hereafter acquire or succeed to all or a portion of the
business or assets of Employer by any means whether direct or indirect, by
purchase, merger, consolidation, or otherwise. Employee's rights and obligations
under this Agreement are personal and such rights, benefits, and obligations of
Employee shall not be voluntarily or involuntarily assigned, alienated, or
transferred, whether by operation of law or otherwise, by Employee without the
prior written consent of Employer.
7.9 Except as provided in (1) written company policies promulgated
by Employer dealing with issues such as securities trading, business ethics,
governmental affairs and political contributions, consulting fees, commissions
and other payments, compliance with law, investments and outside business
interests as officers and employees, reporting responsibilities, administrative
compliance, and the like, (2) the written benefits, plans, and programs
referenced in Sections 2.2, 2.3 and 2.4, or (3) any signed written agreements
contemporaneously or hereafter executed by Employer and Employee, this Agreement
constitutes the entire agreement of the parties with regard to such subject
matters, and contains all of the covenants, promises, representations,
warranties, and agreements between the parties with respect to such subject
matters and replaces and merges previous agreements and discussions pertaining
to the employment relationship between Employer and Employee. Specifically, but
not by way of limitation, any other employment agreement or arrangement in
existence as of the date hereof between Employer or any of its subsidiaries or
affiliates and Employee is hereby canceled and Employee hereby irrevocably
waives and renounces all of Employee's rights and claims under any such
agreement or arrangement.
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IN WITNESS WHEREOF, Employer and Employee have duly executed this
Agreement in multiple originals to be effective on the date first stated above.
BGS Systems, Inc.
By: ___________________________________
Name:
Title:
_______________________________________
Employee
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