EXHIBIT 10.3
SEPARATION AGREEMENT AMENDING CERTAIN PRIOR AGREEMENTS
(INCLUDING GENERAL RELEASE)
This Separation Agreement Amending Certain Prior Agreements (Including General
Release) ("Agreement") is executed August 3, 2001, to be effective July 16,
2001, by and between BINDVIEW CORPORATION (a registered assumed name of BindView
Development Corporation), a Texas corporation ("BindView" or "the Company") and
XXXXX X. XXXXX, a resident of Xxxxxx County, Texas ("you").
1. You and BindView previously entered into an Executive Employment Agreement
effective as of October 2, 2000 ("Employment Agreement") under which you were
employed as Senior Vice President and Chief Marketing Officer of the Company.
You and BindView likewise previously entered into a Nonqualified Stock Option
Agreement effective as of October 2, 2000 (the "2000 Option Agreement") and a
Nonqualified Stock Option Agreement effective as of May 1, 2001 (the "2001
Option Agreement") (collectively the "Option Agreements"). The 2001 Option
Agreement relates to a grant to you of an option to purchase 200,000 shares of
the Company's stock at an exercise price of $2.90 per share (referred to as
"200,000 options"). BindView has not granted you any other options to purchase
the Company's stock.
2. This Agreement amends the Employment Agreement and the Option Agreements to
conclusively establish the severance payment due to you and the vesting and
exercisability of your options and to set forth a general release of BindView.
The Employment Agreement and the Option Agreements otherwise remain in full
force and effect except as modified by this Agreement.
3. You and BindView agree that you are resigning from the Company because of a
restructuring of the Company's marketing functions that materially changed your
responsibilities to the Company, and that such restructuring constitutes "Good
Reason" for resignation under Section 5(b)(2) of the Employment Agreement. Your
last day of employment is the first date written above.
4. Because you are resigning for Good Reason, you are entitled to a one-year
severance period under the Employment Agreement. Under Section 4(c)(3) of the
Employment Agreement, you have elected to receive your salary- and bonus
payments for the severance period in a single lump sum discounted to present
value at the rate of 8% per annum; such discounted amount, less applicable tax
and health-insurance withholding, will be paid to you upon your execution and
delivery of this Agreement to us. The discounted amount is as follows; you
acknowledge receipt of such discounted amount less withholding:
Salary component $ 191,902.00
Bonus component $ 188,502.00
TOTAL SEVERANCE PAYMENT $ 380,404.00
5. Per the Employment Agreement, you are entitled to continue on the Company's
health-insurance plan until July 16, 2002. If you notify BindView in writing
that you no longer wish to continue participating in such plan, the Company will
refund to you the unused amounts withheld from your severance payment for the
employee portion of the applicable premium, at the rate of $150 per month times
the number of full months remaining between the date the Company receives such
notice and July 16, 2002.
6. Except as set forth above, the Company is not obligated to make any other
payment to you in connection with your resignation.
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7. Because you are resigning for Good Reason, the vesting of your 200,000
options under the 2001 Option Agreement has been accelerated by one year
pursuant to the terms of your Employment Agreement. Because of the acceleration
of vesting, 50,000 of your options under the 2001 Option Agreement are now
vested and normally would be required to be exercised no later than October 12,
2001. At your request, BindView agrees to the following (referred to as the
"Extended-Look Clause"): (i) You will have until July 16, 2002, in which to
exercise such 50,000 vested options to the extent you so desire, in accordance
with the terms and conditions of the 2001 Option Agreement; (ii) any of such
50,000 vested options that have not been exercised by then will be forfeited and
canceled; and (iii) all of your other options, under either of the Option
Agreements, are hereby forfeited and cancelled effective immediately. The
Extended-Look Clause is subject to your Revocation Right in paragraph 9.
8. In consideration of the Extended-Look Clause, you, for yourself, your
attorneys, heirs, executors, administrators, successors, and assigns, do 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 you have or may have against
BindView, et al., arising out of any event, transaction, or matter that occurred
before the date of your signing of this Agreement. You covenant that neither
you, nor any person, organization, or other entity on your behalf, will xxx
BindView, et al., or initiate any type of action for damages, against BindView,
et al. with respect to any event, transaction, or matter that occurred before
the date of your signing of this Agreement. You understand and agree that the
release and discharge in this paragraph (the "Release") is a GENERAL RELEASE.
9. This Release specifically includes, but is not limited to, 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 Civil Rights Act, as amended, the Age Discrimination in Employment
Act, as amended, the Older Workers Benefit Protection Act, or any other
applicable state or federal statute), claims concerning recruitment, hiring,
salary rate, 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 you or on your behalf in any
suit, charge of discrimination, or claim against BindView, et al.
10. Unless required to do so by subpoena, you agree not to disseminate or
disclose the terms of this Agreement, the discussions leading to this Agreement,
or any subsidiary undertakings required by this Agreement, including but not
limited to the fact of the Release, except to your legal counsel or tax advisers
as may become necessary. You further agree that no part of this Agreement or the
Release is to be used as or admitted into evidence in any proceeding of any
character, judicial, administrative or otherwise, now pending or subsequently
instituted.
11. You acknowledge that you have been given an opportunity of forty-five (45)
days to consider the Release and that you have been encouraged by BindView to
discuss fully the terms of this Agreement, including the Release, with legal
counsel of your own choosing. Moreover, for a period of seven (7) days following
your execution of this Agreement, you shall have the right to revoke the waiver
of claims
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SEPARATION AGREEMENT PAGE 2
arising under the Age Discrimination in Employment Act ("ADEA"), a federal
statute that prohibits employers from discriminating against employees who are
over the age of 40 (referred to as the "Revocation Right"). If you elect to
exercise the Revocation Right within this seven-day period, you must inform
BindView by delivering a written notice of revocation to X. X. Xxxxx, Vice
President and General Counsel, at BindView no later than 5:00 p.m. on the
seventh calendar day after you sign this Agreement. If you do so, then (i) the
Release shall be voided as to claims arising under the ADEA, (ii) the Release
shall remain in full force and effect as to any and all other claims, (iii) the
Extended-Look Clause, including but not limited to the provision for immediate
forfeiture of certain stock options, shall be voided, and (iv) all of your
vested options to purchase BindView stock, under either of the Option
Agreements, must be exercised on or before October 12, 2001, and any options not
exercised by then will be forfeited and cancelled at that time.
12. You agree that except as expressly provided otherwise in this Agreement, the
Release may not be released, discharged, abandoned, supplemented, changed, or
modified in any manner, except by an instrument in writing signed by you and a
duly authorized member of the management of BindView.
13. You understand and agree that neither this Agreement nor the Release
constitutes an admission of liability or wrongdoing on the part of BindView,
et al. You affirm that no other representations, promises, or agreements of any
kind have been made to or with you by any person or entity whatsoever to cause
you to sign this Agreement.
BINDVIEW CORPORATION, BY: EXECUTIVE
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Xxxx X. Xxxxxxx, President Xxxxx X. Xxxxx
and Chief Executive Officer
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