1
EXHIBIT 10.8
[BINDVIEW LOGO OPTIONEE: KEVIN M. WEISS
NONQUALIFIED STOCK
OPTION AGREEMENT
<Table>
- -----------------------------------------------------------------
NUMBER OF SHARES: Omnibus Incentive Plan:
62,069 shares
Incentive Stock Option Plan:
137,931 shares
- -----------------------------------------------------------------
GRANT DATE: May 1, 2001
- -----------------------------------------------------------------
EXPIRATION DATE: Grant Date plus ten (10) years
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STRIKE PRICE: $ 2.90
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PRIOR Nonqualified Stock Option Agreement
AGREEMENT: between the parties dated October 2,
2000, for 400,000 shares
- -----------------------------------------------------------------
- -----------------------------------------------------------------
VESTING SCHEDULE
(FOUR-YEAR VESTING)
- -----------------------------------------------------------------
EVENT DATE NO. OF SHARES
VESTED
- -----------------------------------------------------------------
Vesting May 1, 2001 None
Start Date:
- -----------------------------------------------------------------
First Vesting Date August 1, 2001 one-sixteenth
(1/16) of the
full number of
Shares
- -----------------------------------------------------------------
Subsequent vesting each three (3) an additional
dates months after the one-sixteenth
First Vesting Date (1/16) of the
full number of
Shares, until
vested as to 100%
of the Shares
- -----------------------------------------------------------------
</Table>
BindView Corporation ("BINDVIEW" or "US") hereby grants to the
"OPTIONEE" identified above ("YOU") the option to purchase from BindView up to
but not exceeding in the aggregate the number of shares of common stock, no par
value per share, of BindView (the "SHARES") at the "STRIKE PRICE" per share, as
set forth above. Because such option covers multiple Shares, it is referred to
herein in plural form as the "OPTIONS." The grant of the Options is subject to
the terms and conditions of this "AGREEMENT" and to the terms and conditions of
the Omnibus Incentive Plan ( "PLAN") as amended by BindView's Board of Directors
("BOARD") from time to time, which is incorporated herein by reference, and a
copy of which will be provided to you upon request. All Section references are
to sections of this Agreement except as otherwise indicated. [BindView
Corporation is a registered assumed name of BindView Development Corporation.]
1. The Options are granted on the same terms and conditions as set
forth in the Prior Agreement (which is incorporated herein by reference). In the
case of any inconsistency between this Agreement and the Prior Agreement, the
Prior Agreement shall control, except for the following:
a. the Options shall be for the Shares and at the Strike Price
set forth above;
b. the Options shall be for a term commencing on the "GRANT
DATE" and ending on the "EXPIRATION DATE," each as set forth above,
unless the Options are terminated earlier by reason of termination of
your employment, in which case the applicable provisions of the Plan
will control; and
c. the Options shall vest and become exercisable as provided
in the "VESTING SCHEDULE" above (subject to any accelerated-vesting
provisions in the Prior Agreement, which shall control to the extent
applicable in accordance with their terms).
2. This Agreement does not amend or modify the Prior Agreement in
respect of the option grant referred to therein.
3. Nothing in this Agreement shall be deemed (i) to constitute an
employment contract, express or implied, nor (ii) to impose any obligation on us
or any of our affiliates to employ you at all or on any particular terms, nor
(iii) to amend any other agreement between you and us, nor (iv) to impose any
obligation on you to work for us, nor (v) to limit our right to terminate your
employment for any reason, with or without cause, nor (vi) to limit your right
to resign from your employment.
Executed to be effective as of the Grant Date.
BINDVIEW CORPORATION, BY:
- ----------------------------------
Richard P. Gardner, President and
Chief Executive Officer
The Option has been accepted by the above-named Optionee, subject to the terms
and provisions of the Plan and of this Agreement, by which the Optionee agrees
to be bound
X __________________________________
KEVIN M. WEISS
2
OPTIONEE: KEVIN M. WEISS
[BINDVIEW LOGO]
NONQUALIFIED STOCK OPTION AGREEMENT
BindView Corporation (the "Company")(1) hereby grants to the "Optionee"
identified above, the option to purchase from the Company up to but not
exceeding in the aggregate the number of shares of common stock, no par value
per share, of the Company (the "Shares") at the "Strike Price" per share, each
as set forth in Schedule 1 below (the "Option"). The grant of the Option is
subject to the terms and conditions of this "Agreement" and to the terms and
conditions of the specific stock option plan identified in Schedule 1, as
amended by the Company's Board of Directors ("Board") from time to time (the
"Plan"), which is incorporated herein by reference. All Section references are
to sections of this Agreement except as otherwise indicated:
1. As provided in the Plan, this Option shall be for a term commencing
on the "Grant Date" and ending on the "Expiration Date," each as set forth in
Schedule 1, unless this Option is terminated earlier by reason of the Optionee's
termination of employment.
2. Subject to the acceleration provisions of Section 7, the Option
shall vest and become exercisable over four (4) years as follows:
o One-year "cliff": One-fourth (1/4) of the Shares on the first
anniversary of the Grant Date; and
o Quarterly vesting thereafter: One-sixteenth (1/16) of the Shares
every third month after the first anniversary of the Grant Date,
on the same day of such third month as the day of the month of
the Grant Date, until the Option is fully vested.
3. The Optionee is entitled to exercise the Option as to all or any
part of the Shares as to which the Option has vested.
4. As a condition to, and in consideration of, the Company's granting
to the Optionee this Option, a security of the Company, and giving the Optionee
access to certain confidential and proprietary information, as well as special
training and knowledge, which the Optionee recognizes is valuable to the Company
and, therefore, its protection and maintenance constitutes a legitimate interest
to be protected by the provisions of this Section 4 as applied to the Optionee
and all other optionholders similarly situated to the Optionee, the Optionee
hereby agrees as follows:
a. For "a reasonable period of time" after termination of this
Option and within "a reasonable territory" (both defined in paragraph
(b), below), the Optionee will not for any reason, directly or
indirectly, by any means or device, for him- or herself or on behalf of
or in conjunction with any person, partnership or corporation, (i)
compete with the Company in the development, marketing (including but
not limited to sales), or support of systems management software
products which aid in the management of distributed client/server
networks, (ii) solicit any customers of the Company to purchase the
products or services which, as of the date of such termination, would
compete directly or indirectly, with those which were offered by the
Company or were reasonably foreseeable to be
- ------------------------
(1) "BindView Corporation" is a registered assumed name of BindView Development
Corporation.
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OPTIONEE: KEVIN M. WEISS
offered by the Company during such period of time or (iii) work on or
develop, directly or indirectly, for any competitor of the Company any
programs or software similar to those upon which the Optionee worked or
assisted during the Optionee's employment with the Company. The
aforementioned period of time specified in this paragraph will not run
during any period when the Optionee is committing any act prohibited by
this Agreement.
b. As used in this Agreement, "a reasonable period of time"
means one year, unless otherwise reduced or extended pursuant to the
terms hereof. If the Optionee violates the covenants set forth in
paragraph (a), above, and the Company brings a legal action for
injunctive or other relief, the Company shall not be deprived of the
benefit of the full reasonable period of time. Accordingly, the
covenants set forth in the preceding paragraph shall be deemed to have
a duration of "a reasonable period of time," with such period
commencing upon the later of (i) the termination of the Optionee's
employment with the Company and (ii) the date of entry by a court of
competent jurisdiction of a final judgment enforcing the covenants
contained in paragraph (a), above. As used in this Agreement, "a
reasonable territory", in view of the international nature of the
markets in which the Company competes, means the United States of
America, Europe, the Middle East, Africa, and any other foreign market
in which the Company's products are sold during the term of this
Option.
c. To permit the Company to protect its rights under the
covenants in this Section 4, the Optionee agrees that while the
Optionee is employed by the Company or any of its Affiliates, before
the Optionee agrees to be employed by any other corporation or entity,
the Optionee will advise his supervisor at the Company (or its
applicable Affiliate) of all relevant facts and will cooperate fully in
reasonable exit-interview procedures.
d. The covenants set forth in this Section 4 will accrue to
the benefit of the Company, regardless of the reason for the
termination of this Option.
e. The Optionee acknowledges that the obligations of this
Agreement are directly related to the grant of this Option by the
Company and are necessary to protect the Company's legitimate business
interests. The Optionee acknowledges that the Company's need for the
covenants set forth in this Agreement is based on the following: (i)
the substantial time, money and effort expended and to be expended by
the Company in developing technical designs, computer program source
codes, marketing plans and similar confidential information; (ii) the
fact that the Optionee will be personally entrusted with the Company's
confidential and proprietary information, including but not limited to
being granted access to new confidential and proprietary information on
an on-going basis by virtue of the Optionee's access to the Company's
computer network; (iii) the fact that, after having access to the
Company's technology and other confidential information, the Optionee
could become a competitor of the Company; and (iv) the highly
competitive nature of the Company's industry, including the premium
that competitors of the Company place on acquiring proprietary and
competitive information.
f. Notwithstanding the foregoing, the Optionee may acquire an
ownership interest, directly or indirectly, of not more than 5% of the
outstanding securities of any corporation which is engaged in a
business competitive with the Company and which is listed on any
recognized securities exchange or traded in the over the counter market
in the United States; provided, that such investment is of a totally
passive nature and does not involve the Optionee devoting time to the
management or operations of such corporation.
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OPTIONEE: KEVIN M. WEISS
5. This Option is a nonqualified stock option that is not intended to
be governed by Section 422 of the Internal Revenue Code of 1986, as amended.
6. The Optionee in accepting this Option accepts and agrees to be bound
by all the terms and conditions of this Agreement and of the Plan which pertain
to non-qualified stock options granted under the Plan.
7. (a) If, subsequent to any Change of Control occurring after the
Grant Date, the Optionee resigns for Good Reason or the Optionee's employment is
terminated by the Company other than for Cause (all as defined below), then any
Option granted hereby that has not yet vested as to any portion of the Shares
(i.e., the vesting date(s) has not yet been reached as to that portion of the
Shares) shall be accelerated and shall automatically vest and become fully
exercisable as to any remaining unvested portion of the Shares in accordance
with this Section 7. Resignation for any reason prior to a Change of Control
shall not result in such accelerated vesting.
(b) If:
(1) Richard P. Gardner ceases to be the Chief Executive
Officer ("CEO") of the Company, and
(2) the Optionee is not appointed (i) as the Company's CEO to
replace Mr. Gardner, or (ii) as the Company's Chief Operating Officer,
then
(3) any Option granted hereby that has not yet vested as to
any portion of the Shares (i.e., the vesting date(s) has not yet been reached as
to that portion of the Shares) shall be accelerated so as to vest and become
fully exercisable as to any unvested portion of the Shares that would otherwise
have been vested on the date one (1) year after the date on which Mr. Gardner
ceased to be the Company's CEO, in accordance with this Section 7.
(c) "Cause" means either (i) the willful commission by the Optionee of
an act constituting a dishonest or other act of material misconduct, or
conviction of a fraudulent act or a felony under the laws of any state or of the
United States to which the Company or Optionee is subject, and such act results
(or is intended to result directly or indirectly) in the Optionee's substantial
gain or personal enrichment to the material and demonstrable detriment of the
Company; or (ii) the commission of repeated material breaches of this Agreement
by the Optionee where the Company notifies the Optionee in writing of each such
material breach, and prior to termination, the Company gives the Optionee thirty
(30) days advance written notice of its intention to terminate the Employment
for Cause at the end of such thirty-day period.
Any act, or failure to act, based upon authority given
pursuant to a resolution duly adopted by the Board or upon the instructions of
the Chief Executive Officer of the Company or based upon the advice of counsel
for the Company shall be conclusively presumed to be done, or omitted to be
done, by the Optionee in good faith and in the best interests of the Company and
thus shall not be deemed grounds for termination for Cause.
(d) "Change of Control" has the meaning set forth in the Plan.
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OPTIONEE: KEVIN M. WEISS
(e) "Good Reason" shall mean any of the following events if occurring
without the Optionee's prior written consent:
(1) the assignment by the Company to the Optionee of duties
that are materially inconsistent with the Optionee's office with Company at the
time of such assignment, or the removal by the Company from the Optionee of a
material portion of those duties usually appertaining to the Optionee's office
with the Company at the time of such removal (a change of title, in and of
itself, shall not be deemed to constitute such an assignment or such a removal);
(2) a material change by the Company in the Optionee's
responsibilities to the Company, as such responsibilities are ordinarily and
customarily required from time to time of a person in the same position, in a
corporation engaged in the Company's business, as the Optionee's position with
the Company (a change of title, in and of itself, shall not be deemed to
constitute such an assignment or such a removal);
(3) any removal of the Optionee by the Company from, or any
failure by the Company to reelect or to reappoint the Optionee to, the office to
which the Optionee was appointed in conjunction with the commencement of his
employment or any office held by the Optionee immediately prior to the time in
question;
(4) the Company's direction that the Optionee discontinue
service (or not seek reelection or reappointment) as a director, officer or
member of any corporation or association of which the Optionee is a director,
officer, or member at the Grant Date;
(5) a reduction by the Company in the amount of the Optionee's
base salary as determined by his employment agreement with the Company, if any
(or as subsequently increased), or the failure of the Company to pay such base
salary to the Optionee at the time and in the manner specified by such
employment agreement;
(6) other than with respect to the annual performance bonus
specified in the Optionee's employment agreement with the Company, if any, or as
made with the Optionee's prior written consent, the discontinuance (without
comparable replacement) or material reduction by the Company of the Optionee's
participation in any bonus or other employee benefit arrangement (including,
without limitation, any profit-sharing, thrift, life insurance, medical, dental,
hospitalization, stock option or retirement plan or arrangement) in which the
Optionee is a participant under the terms of his employment agreement with the
Company, if any, as in effect on the Grant Date or as may be improved from time
to time hereafter;
(7) the moving by the Company of the Optionee's principal
office space, related facilities, or support personnel, from the Company's
principal operating offices, or the Company's requiring the Optionee to perform
a majority of his duties outside the Company's principal operating offices for a
period of more than 30 consecutive days;
(8) the relocation, without the Optionee's prior written
consent, of the Company's principal operating offices to a location outside the
county in which such offices are located at the time of the signing of this
Agreement;
(9) in the event the Company requires the Optionee to reside
at a location more than 25 miles from the Company's principal operating offices,
except for occasional travel in connection with the Company's business to an
extent and in a manner which is substantially consistent with the Optionee's
current business travel obligations;
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OPTIONEE: KEVIN M. WEISS
(10) in the event the Optionee consents to a relocation of the
Company's principal operating offices, the failure of the Company to (A) pay or
reimburse the Optionee on an after-tax basis for all reasonable moving expenses
incurred by the Optionee in connection with such relocation or (B) indemnify the
Optionee on an after-tax basis against any loss realized by the Optionee on the
sale of his principal residence in connection with such relocation;
(11) the failure of the Company to provide the Optionee with
the benefits specified under the Optionee's employment agreement with the
Company, if any;
(12) the failure of the Company to continue to provide the
Optionee with office space, related facilities and support personnel (including,
without limitation, administrative and secretarial assistance) that are
commensurate with the Optionee's responsibilities to and position with the
Company;
(13) the failure by the Company to promptly reimburse the
Optionee for the reasonable business expenses incurred by the Optionee in the
performance of his duties for the Company, as set forth in the Optionee's
employment agreement with the Company, if any;
(14) the failure by the Company to comply with its obligations
under Section 8 of this Agreement (concerning assumption of this Agreement by
any successor or assign of the Company);
(15) a change in the Company's management structure such that
the Optionee no longer reports to the Company's Chief Executive Officer.
(f) (1) Notwithstanding the foregoing, acceleration shall not occur if
all of the following occur: (i) a contemplated Change of Control would occur
prior to the date two (2) years following the Grant Date; (ii) such potential
acceleration of vesting (and exercisability) would by itself result in such
contemplated Change of Control, that would otherwise be eligible to be accounted
for as a "pooling of interests" accounting transaction, becoming ineligible for
such accounting treatment; and (iii) the potential acquirer of the Company in
such contemplated Change of Control desires to account for such contemplated
Change of Control as a "pooling of interests" transaction. The restriction on
acceleration in this Section 7(f)(1) is referred to as the "Acceleration
Restriction. Notwithstanding any provision in this section, the Option will
survive any change in control.
(2) The Acceleration Restriction shall be deemed inoperative
with respect to a contemplated Change of Control if by itself it would result in
such Change of Control being ineligible to be accounted for as a "pooling of
interests" accounting transaction.
(3) The applicability of the Acceleration Restriction with
respect to a particular Change of Control shall not limit any potential
acceleration of vesting (and exercisability) with respect to any subsequent
Change of Control. Likewise, the application of the Acceleration Restriction to
any such subsequent Change of Control shall be determined without regard to the
applicability of such restrictions to any prior Change of Control.
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OPTIONEE: KEVIN M. WEISS
(4) Any and all accounting issues arising under this Section
7(d) shall be determined by the Company's independent public accountants
applying generally accepted accounting principles.
8. This Agreement shall inure to the benefit of and be binding upon (i)
the Company and its successors and assigns, and (ii) the Optionee and his heirs
and legal representatives. The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
9. All notices and statements with respect to this Agreement, including
without limitation any exercise of the Option, must be in writing and shall be
delivered by one of the methods set forth in the table below. Notices to the
Company shall be addressed to the attention of the Company's vice president for
human resources, in either case at the Company's then-current principal
operating office. Notices to the Optionee may be addressed to the Optionee's
then-current home address as indicated in the Company's records.
DELIVERY METHOD WHEN NOTICE IS EFFECTIVE
Personal delivery When the party to whom notice
is given provides the party giving
notice with a signed written
acknowledgement of receipt
Certified mail, return Upon the date of receipt or of
receipt requested refusal as indicated by the
U.S. Postal Service "green card"
FAX Upon receipt as confirmed by a
machine-printed report of successful
transmission (if on a business
day, otherwise the following
business day)
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OPTIONEE: KEVIN M. WEISS
<Table>
<Caption>
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SCHEDULE 1
- --------------------------------------------------------------------------------
Plan (check one) ____ BindView Development Corporation 2000
Employee Incentive Plan
_XX_ BindView Development Corporation Omnibus
Incentive Plan
If neither plan is checked, the plan is the
BindView Development Corporation 2000 Employee
Incentive Plan
- --------------------------------------------------------------------------------
Grant Date October 2, 2000
- --------------------------------------------------------------------------------
Strike Price Fair Market Value (as defined in the Plan)
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Number of Shares 400,000
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Expiration Date Grant Date plus ten (10) years
- --------------------------------------------------------------------------------
</Table>
Executed to be effective as of the Grant Date.
BINDVIEW CORPORATION, BY: The Option has been accepted by
the above-named Optionee,
subject to the terms and
provisions of the Plan
(as amended) and of this
Agreement.
- -------------------------------------------- --------------------------------
Richard P. Gardner, on behalf of the Company KEVIN M. WEISS
and the Board
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