1
EXHIBIT 10.2
GRANTEE: EDWARD L. PIERCE
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 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.
2.10 RESTRICTED STOCK has the meaning set forth in the Plan.
- -------------------
(1) "BindView Corporation" is a registered assumed name of BindView
Development Corporation.
PAGE 1
2
GRANTEE: EDWARD L. PIERCE
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.
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.
PAGE 2
3
GRANTEE: EDWARD L. PIERCE
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.
10. OTHER PROVISIONS. The section of the Employment Agreement entitled
"Other Provisions" is hereby incorporated by reference into this
Agreement.
PAGE 3
4
GRANTEE: EDWARD L. PIERCE
SCHEDULE 1
Plan BindView Development Corporation
Omnibus Incentive Plan
- --------------------------------------------------------------------------------
Grant Date May 1, 2001
- --------------------------------------------------------------------------------
Purchase Price Fair Market Value on the Grant Date ($2.61
per Share)
- --------------------------------------------------------------------------------
Number of Shares 400,000
- --------------------------------------------------------------------------------
VESTING SCHEDULE
(four-year vesting):
- --------------------------------------------------------------------------------
EVENT DATE NO. OF SHARES VESTED
- --------------------------------------------------------------------------------
Vesting Start Date: Grant Date None
- --------------------------------------------------------------------------------
First Vesting Date Grant Date plus one year one-fourth (1/4) of
the full number of
Shares
- --------------------------------------------------------------------------------
Subsequent vesting dates each three (3) months an additional one-
after the First Vesting sixteenth (1/16) of the
Date full number of Shares,
until vested as to
100% of the Shares
- --------------------------------------------------------------------------------
SCHEDULE 2
(Based on principal amount of $1,044,000.00 at 6% per annum, simple interest
paid quarterly)
Date Principal Principal Interest Due Total Payment Remaining
Portion Due Amount Due Balance
- -------------------------------------------------------------------------------------------------------------------
4/30/2002 1/4 $261,000.00 $62,640.00 $323,640.00 $783,000.00
- -------------------------------------------------------------------------------------------------------------------
7/31/2002 1/16 $65,250.00 $11,745.00 $76,995.00 $717,750.00
- -------------------------------------------------------------------------------------------------------------------
10/31/2002 1/16 $65,250.00 $10,766.25 $76,016.25 $652,500.00
- -------------------------------------------------------------------------------------------------------------------
1/31/2003 1/16 $65,250.00 $9,787.50 $75,037.50 $587,250.00
- -------------------------------------------------------------------------------------------------------------------
4/30/2003 1/16 $65,250.00 $8,808.75 $74,058.75 $522,000.00
- -------------------------------------------------------------------------------------------------------------------
7/31/2003 1/16 $65,250.00 $7,830.00 $73,080.00 $456,750.00
- -------------------------------------------------------------------------------------------------------------------
10/31/2003 1/16 $65,250.00 $6,851.25 $72,101.25 $391,500.00
- -------------------------------------------------------------------------------------------------------------------
1/31/2004 1/16 $65,250.00 $5,872.50 $71,122.50 $326,250.00
- -------------------------------------------------------------------------------------------------------------------
4/30/2004 1/16 $65,250.00 $4,893.75 $70,143.75 $261,000.00
- -------------------------------------------------------------------------------------------------------------------
7/31/2004 1/16 $65,250.00 $3,915.00 $69,165.00 $195,750.00
- -------------------------------------------------------------------------------------------------------------------
10/31/2004 1/16 $65,250.00 $2,936.25 $68,186.25 $130,500.00
- -------------------------------------------------------------------------------------------------------------------
1/31/2005 1/16 $65,250.00 $1,957.50 $67,207.50 $65,250.00
- -------------------------------------------------------------------------------------------------------------------
4/30/2005 1/16 $65,250.00 $978.75 $66,228.75 $0.00
- -------------------------------------------------------------------------------------------------------------------
</Table>
PAGE 4
5
GRANTEE: EDWARD L. PIERCE
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 (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 May 1, 2001.
BINDVIEW CORPORATION, BY: GRANTEE:
- ------------------------------ ------------------------------------
Richard P. Gardner, President Edward L. Pierce
and Chief Executive Officer
PAGE 5