EXHIBIT 10.34
GRANTEE: XXXXXX X. XXXXXX
BINDVIEW CORPORATION
RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT (this "AGREEMENT") is made between BindView
Corporation, a Texas corporation (the "COMPANY"),1 and the "GRANTEE" identified
above. Unless otherwise indicated, all references to Sections are to Sections in
this Agreement. This Agreement is effective as of the execution date set forth
on the signature page of this Agreement.
1. BACKGROUND. The Grantee is being hired for a senior executive position
with the Company in which he will have substantial responsibility for the
management and growth of the Company and its affiliates. The Company
considers it to be in the best interests of the Company and its
shareholders to provide the Grantee with additional stock-based
incentives, thereby encouraging the Grantee to continue in the employ of
the Company and/or its affiliates.
2. DEFINITIONS. For purposes of this Agreement, the following terms have the
meanings set forth below.
2.1 BINDVIEW COMPANY 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.
2.2 EMPLOYMENT AGREEMENT means the First Amended and Restated Employment
Agreement being contemporaneously entered into by the Grantee and the
Company.
2.3 FAIR MARKET VALUE has the meaning set forth in the Plan.
2.4 IMMEDIATE FAMILY MEMBER has the meaning set forth in the Plan.
2.5 PERSON means a natural person, corporation, partnership, or other legal
entity, or a joint venture of two or more of the foregoing.
2.6 PLAN means the Company's incentive stock plan identified in Schedule 1.
2.7 PROMISSORY NOTE means the promissory note contemporaneously executed by
the Grantee and delivered to the Company in payment of the Purchase
Price.
2.8 PURCHASE PRICE means the purchase price at which the Grantee is
purchasing the Shares as set forth in Schedule 1.
2.9 REPURCHASE PERIOD and REPURCHASE RIGHT - see Section 6.
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(1) "BindView Corporation" is a registered assumed name of BindView Development
Corporation.
GRANTEE: XXXXXX X. XXXXXX
2.10 RESTRICTED STOCK has the meaning set forth in the Plan.
2.11 SCHEDULE 1 and SCHEDULE 2 mean, respectively, Schedule 1 and Schedule 2
set forth at the end of this Agreement above the parties' signatures.
2.12 SHARES means the shares of Restricted Stock, no par value per share,
granted to the Grantee pursuant to this Agreement as set forth in
Schedule 1.
2.13 STOCK has the meaning set forth in the Plan.
2.14 TERMINATION DATE means the date on which the Grantee is no longer
employed by any BindView Company. (The fact that the Grantee ceases to be
employed by one BindView Company will not cause a Terminate Date to occur
if the Grantee is immediately thereafter employed by another BindView
Company.)
3. RESTRICTED STOCK AWARD. The Company hereby awards and delivers, and the
Grantee hereby accepts, the Shares, in consideration of (i) the provision
of services to the Company by the Grantee, and (ii) the payment by the
Grantee of the Purchase Price. The Purchase Price shall be payable by
execution and delivery by the Grantee of the Promissory Note. Such award
is made by the Company and accepted by the Grantee pursuant to, and
subject to the terms and conditions of, the Plan. The Grantee
acknowledges that he has received a copy of the Plan.
4. VESTING. Provided that the Purchaser remains continuously employed by the
Company or another BindView Company, the Shares shall vest in accordance
with Schedule 1.
5. RESTRICTIONS ON TRANSFERS OF SHARES.
5.1 Unvested Shares may not be sold, transferred, assigned, pledged, or
otherwise disposed of or encumbered, by operation of law or otherwise,
except as expressly provided otherwise in the Plan.
5.2 In addition, no Shares may be sold, etc., even though vested, unless the
Executive has paid the Company certain installments of principal and
interest under the Promissory Note, as set forth in Schedule 2.
5.3 The Plan shall control in the event of the Purchaser's death or
Disability, or termination of the Purchaser's employment for any reason.
6. REPURCHASE OF SHARES.
6.1 During the 60-day period following the Termination Date (the "REPURCHASE
PERIOD"), the Company shall have a "REPURCHASE RIGHT" consisting of the
right and obligation to repurchase all of the unvested Shares, if any, at
the Purchase Price, from (i) the Grantee, or (ii) any Immediate Family
Member (if any) to whom any such unvested Shares have been transferred
per Section 6.2 of the Plan.
RESTRICTED STOCK AGREEMENT 12/31/2001 PAGE 2
GRANTEE: XXXXXX X. XXXXXX
6.2 The repurchase price will be paid in cash at a time set by the Company
within thirty (30) days after the end of the Repurchase Period, provided
that the Grantee or Immediate Family Member has executed the transfer
documents required under applicable law.
6.3 If the Grantee or Immediate Family Member fails to execute the required
transfer documents, then the Shares represented by such transfer
documents shall be deemed to have been repurchased upon (a) the payment
by the Company of the repurchase price to the Grantee or the Immediate
Family Member, as applicable, or (b) notice to the Grantee or the
Immediate Family Member, as applicable, that the Company is holding the
repurchase price for the account of the Grantee or the Immediate Family
Member. Upon such payment or notice, the Grantee and the Immediate Family
member will have no further rights in or to such Shares.
7. CERTAIN TAX CONSIDERATIONS.
7.1 The Grantee shall make arrangements reasonably satisfactory to the
Company to satisfy any applicable federal, state or local withholding tax
obligations arising with respect to the Shares. If the Grantee fails to
satisfy any such obligations in a time and manner reasonably satisfactory
to the Company, then the Company may withhold all required amounts from
any compensation or other amounts which the Company is obligated to pay
under the Employment Agreement or any other agreement between the Grantee
and the Company.
7.2 The Grantee acknowledges that (a) the Grantee has been informed of the
availability of making an election in accordance with Section 83(b) of
the Internal Revenue Code of 1986, as amended; (b) such election must be
filed with the Internal Revenue Service within a certain period of time;
(c) the Grantee is solely responsible for making such election; and (d)
under Section 4.6 of the Plan as in effect on the Grant Date, the Grantee
may not make such election without written approval of the Compensation
Committee of the Company's Board of Directors.
8. EFFECT OF AGREEMENT ON OTHER RIGHTS.
8.1 This Agreement shall not diminish or enhance other rights which the
Grantee (or his estate, survivors or heirs) may have under any other
contract, employee benefit plan or policy of the Company except as
expressly provided in this Agreement.
8.2 Nothing in this Agreement shall be deemed (i) to constitute an employment
contract, express or implied, nor (ii) to impose any obligation on the
Company or any affiliate thereof to employ the Grantee at all or on any
particular terms, nor (iii) to amend any other agreement between the
Grantee and the Company or any affiliate thereof; nor (iv) to impose any
obligation on the Grantee to work for the Company or any affiliate
thereof, nor (v) to limit the right of the Company to terminate the
Grantee's employment for any reason, with or without cause, nor (vi) to
limit the Grantee's right to resign from employment.
9. ARBITRATION. Any dispute arising out of or relating to this Agreement or
its validity, enforceability, or breach will be arbitrated in accordance
with the arbitration provisions of the Employment Agreement.
RESTRICTED STOCK AGREEMENT 12/31/2001 PAGE 3
GRANTEE: XXXXXX X. XXXXXX
10. OTHER PROVISIONS. The section of the Employment Agreement entitled "Other
Provisions" is hereby incorporated by reference into this Agreement.
RESTRICTED STOCK AGREEMENT 12/31/2001 PAGE 4
GRANTEE: XXXXXX X. XXXXXX
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SCHEDULE 1
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Plan BindView Development Corporation
Omnibus Incentive Plan
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Grant Date December 31, 2001
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Purchase Price Fair Market Value on the Grant Date
($1.97 per Share)
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Number of Shares 400,000
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VESTING SCHEDULE
(four-year vesting):
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EVENT DATE NO. OF SHARES VESTED
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Vesting Start Date: Grant Date None
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First Vesting Date April 30, 2001 one-fourth (1/4) of the full
number of Shares
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Subsequent vesting dates each three (3) months an additional one-sixteenth (1/16) of
after the First Vesting the full number of Shares, until vested
Date as to 100% of the Shares
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SCHEDULE 2
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(Based on principal amount of $788,000.00 at 3% per annum, simple interest paid quarterly)
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Date Principal Principal Amount Interest Due Total Payment Remaining
Portion Due Due Balance
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12/31/2001 N/A $0.00 $0.00 $0.00 $788,000.00
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4/30/2002 1/4 $197,000.00 $7,880.00 $204,880.00 $591,000.00
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7/31/2002 1/16 $49,250.00 $4,432.50 $53,682.50 $541,750.00
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10/31/2002 1/16 $49,250.00 $4,063.13 $53,313.13 $492,500.00
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1/31/2003 1/16 $49,250.00 $3,693.75 $52,943.75 $443,250.00
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4/30/2003 1/16 $49,250.00 $3,324.38 $52,574.38 $394,000.00
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7/31/2003 1/16 $49,250.00 $2,955.00 $52,205.00 $344,750.00
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10/31/2003 1/16 $49,250.00 $2,585.63 $51,835.63 $295,500.00
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1/31/2004 1/16 $49,250.00 $2,216.25 $51,466.25 $246,250.00
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4/30/2004 1/16 $49,250.00 $1,846.88 $51,096.88 $197,000.00
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7/31/2004 1/16 $49,250.00 $1,477.50 $50,727.50 $147,750.00
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10/31/2004 1/16 $49,250.00 $1,108.13 $50,358.13 $98,500.00
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1/31/2005 1/16 $49,250.00 $738.75 $49,988.75 $49,250.00
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4/30/2005 1/16 $49,250.00 $369.38 $49,619.38 $0.00
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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 Grantee acknowledges that the Grantee (1) has read and
understood the entire Agreement; (2) has received a copy of it
RESTRICTED STOCK AGREEMENT 12/31/2001 PAGE 5
GRANTEE: XXXXXX X. XXXXXX
(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 December 31, 2001.
BINDVIEW CORPORATION, BY: GRANTEE:
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Xxxx X. Xxxxxxx, Chairman, Xxxxxx X. Xxxxxx
President, and Chief
Executive Officer
RESTRICTED STOCK AGREEMENT 12/31/2001 PAGE 6
