EXHIBIT 10.51
SEPARATION AGREEMENT (INCLUDING GENERAL RELEASE)
This Separation Agreement Including General Release ("Agreement") is executed to
be effective December 31, 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. XXXXXXX, a
resident of Xxxxxx County, Texas ("you""). This agreement shall be deemed an
addendum and amendment to your employment agreement with BindView, if any,
except that in event of a conflict between the provisions of such agreement and
the provisions of this Agreement, the latter shall control.
1. This Agreement confirms and memorializes certain previous discussions
between you and BindView's senior management, as follows:
(a) When you were promoted to vice president of worldwide sales, you did
not have an employment agreement with the Company. BindView's senior
management indicated to you (1) that the Company was developing
standard forms of executive employment agreement and
change-of-control agreement, which the Company intended to submit for
approval by the Compensation Committee of the Board of Directors for
use with senior executives, and (2) that you would be entitled to
enter such agreements on the same basis as similarly-situation senior
executives once they were approved by the Compensation Committee.
(b) The terms of your subsequent separation from BindView were the result
of an oral understanding between you and the chief executive officer
of the Company, under which (1) you would receive the same severance
benefits for termination without cause or resignation for good reason
as provided in the above-referenced forms of agreement, once such
forms were approved by the Compensation Committee, and (2) you would
stay on for a transition period of a length to be determined by
mutual agreement.
(c) The Compensation Committee recently approved the forms of Executive
Employment Agreement and Change of Control Agreement (collectively,
the "Executive Agreements") that are attached hereto as Exhibits A
and B respectively.
2. You and the Company have agreed that your last date of employment with
BindView will be December 31, 2002. You agree to conduct an orderly
turnover of your work papers, computer files, and other work materials to
a designated BindView representative before your last day of employment,
and to assist in the transition of duties and for a reasonable time
period following your last date of employment. Without limiting the
foregoing, you agree that we may contact you to answer questions and
explain any work in progress or status of your BindView work to a
designated BindView representative.
3. The terms and conditions of the Executive Agreements are incorporated
into this Agreement by reference, including without limitation the
definitions, noncompetition covenant, arbitration provision, and Other
Provisions of the Executive Employment Agreement, except that:
(a) your Employment is ending as of the date set forth above;
(b) your Bonus Potential Earned for the Company's fiscal year ending
December 31, 2002, will be three-fourths (3/4) of the amount to which
you would otherwise be entitled under the 2002 Corporate Bonus Plan ,
as amended by the Company's board of directors on November 14, 2002.
This takes into account the fact that, for approximately one-fourth
(1/4) of such fiscal year, you were on a commission plan and not on
the Corporate Bonus Plan. Accordingly, you will be entitled to
receive a bonus of $25,250 if the
Company's actual fourth quarter financial performance is equal to or
less than the low end of its fourth quarter projections and
$32,812.50 if the actual results for the fourth quarter are equal to
or higher than the high end of the Company's fourth quarter financial
expectations. The bonus, if any, will be paid to you at the same time
that it is paid to other executives of the Company.
4. In consideration of the foregoing, 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.
5. 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.
6. 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.
7. 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.
8. You acknowledge that the Company will file this Agreement, including
Exhibits A and B, as an exhibit to a periodic report under the Securities
and Exchange Act of 1934.
9. BindView and its senior management hereby express our sincere thanks to
you for your many years of devoted service to the Company and wish you
all the best in your future endeavors.
BINDVIEW CORPORATION, BY:
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Xxxx X. Xxxxxxx, President and Xxxxxxx X. Xxxxxxx
Chief Executive Officer
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