EXHIBIT 10.55
AGREEMENT (INCLUDING GENERAL RELEASE)
This Agreement including General Release ("Agreement") is executed and effective
July 15, 2002, by and between BindView Corporation (a registered assumed name of
BindView Development Corporation), a Texas corporation ("BindView" or "the
Company" or "us") and Xxxxxxx X. Xxxxxx, a resident of Fort Bend County, Texas
("you""). This agreement shall be deemed an addendum and amendment to your
employment and stock-option agreements with BindView, except that in event of a
conflict between the provisions of any such agreement and the provisions of this
Agreement, the latter shall control. All provisions in your employment and
stock-option agreements not expressly amended by this Agreement shall remain in
full force and effect.
1. You agree that, through July 15, 2003, we may at our option contact you to
answer questions and explain any work in progress or the status of your BindView
work as of your departure date to a designated BindView representative. You
agree to provide reasonable cooperation with us in answering such questions, on
a not-to-interfere basis with your new job.
2. In consideration for the above, BindView agrees to provide you with the
following:
a. Acceleration of the vesting of the 75,000 options that were
granted to you on April 8, 2002 (at the strike price of $1.5450)
so that they are 100% vested as of July 15, 2002.
b. Extension of the exercise period for the above-mentioned grant to
expire at 5 pm Houston time on July 15, 2003 (except as otherwise
provided in paragraph 6 below).
c. Acceleration and extension of the exercise period applies
exclusively to the April 8, 2002 grant. All other stock option
grants expire ninety (90) days from the date of your separation.
3. In consideration of the above, 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.
4. The 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.
5. 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. Failure to comply with the previous sentence will be
deemed a material breach of this Agreement. 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.
6. You acknowledge that you have been given an opportunity to take up to
forty-five (45) days to consider this Agreement, including the Release, before
executing and delivering this Agreement, and that we have encouraged you 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 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
extension of the exercise period for your stock options under paragraph 2b above
shall be voided, and your vested stock options may be exercised solely in
accordance with the respective option plan(s) under which they were granted.
7. 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.
8. 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:
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, Senior VP Xxxxxxx X. Xxxxxx
and Chief Financial Officer Date: 8/30/02
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