1
EXHIBIT 10.7
[BINDVIEW LOGO] OPTIONEE: WILLIAM D. MILLER
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
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PLAN: Omnibus Incentive Plan
- ----------------------- -----------------------------------------
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 of
AGREEMENT: BindView Development Corporation
Omnibus Incentive Plan between the
parties dated May 24, 2000, for 150,000
shares
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</Table>
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VESTING SCHEDULE
(FOUR-YEAR VESTING)
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NO. OF SHARES
EVENT DATE VESTED
- -----------------------------------------------------------------
Vesting May 1, 2001 None
Start Date:
- -----------------------------------------------------------------
First Vesting Date August 1, 2001 an additional
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 __________________________________
WILLIAM D. MILLER
2
OPTIONEE: WILLIAM D. MILLER - 150,000 SHARES
NONQUALIFIED STOCK OPTION AGREEMENT
OF
BINDVIEW DEVELOPMENT CORPORATION
OMNIBUS INCENTIVE PLAN
BindView Development Corporation (the "Company") 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"), subject to the terms and
conditions of this "Agreement" and to the terms and conditions of the BindView
Development Corporation Omnibus Incentive Plan, 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 three (3) months after the first
anniversary of the Grant Date occurs, until the Option
is fully vested. HYPOTHETICAL EXAMPLE: If the first
anniversary of a Grant Date is August 3, then an
additional one-sixteenth of the Shares will vest on
November 3, February 3, etc., 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 himself or on behalf of or in
conjunction with any person, partnership or corporation (i) compete
with the Company in the development or marketing of systems management
software products which manage 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 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
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OPTIONEE: WILLIAM D. MILLER - 150,000 SHARES
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 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 one-year duration, 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 and any foreign market in which the Company's products are sold
during the term of this Option.
c. The covenants set forth in paragraph (a), above, will
accrue to the benefit of the Company, regardless of the reason for the
termination of this Option.
d. 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; (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.
e. 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.
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. 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
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OPTIONEE: WILLIAM D. MILLER - 150,000 SHARES
accordance with this Section 7. Resignation for any reason prior to a
Change of Control shall not result in such accelerated vesting.
(a) "Cause" shall mean 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, subject to the following:
(1) No act or failure to act, on the part of the
Optionee, shall be considered "willful" unless it is done, or omitted to be
done, by the Optionee in bad faith or without reasonable belief that the
Optionee's action or omission was in the best interests of the Company. 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 or
a senior 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.
(2) No termination by the Company shall be deemed to
have been for Cause unless and until there shall have been delivered to the
Optionee a copy of a resolution duly adopted by a majority vote after full
consideration of the facts (including without limitation consideration of any
written materials submitted by, and of any oral statements made at the Board
meeting by, the Optionee and/or his or her counsel) finding that, in the good
faith opinion of the Board, the circumstances described in this Section 7(a)
exist (specifying the particulars thereof in detail).
(b) "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 and/or
reporting responsibility, in and of themselves, 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 and/or reporting responsibility, in
and of themselves, shall not be deemed to constitute such an assignment or such
a removal);
(3) any removal of the Optionee from, or any failure
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
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OPTIONEE: WILLIAM D. MILLER - 150,000 SHARES
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;
(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).
(c) (1) Notwithstanding the foregoing, acceleration shall not
occur if all of the following occur: (i) the 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
a contemplated Change of Control that would otherwise be eligible to be
accounted for as a "pooling of interests" accounting transaction to become
ineligible for such accounting treatment; and (iii) the potential acquiror of
the Company desires to account for such contemplated Change of Control as a
"pooling of interests" transaction. The restriction on acceleration in this
Section 7(c)(1) is referred to as the "Acceleration Restriction."
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OPTIONEE: WILLIAM D. MILLER - 150,000 SHARES
(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.
(4) Any and all accounting issues arising under this
Section 7(c) 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.
<Table>
<Caption>
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 refusal as indicated
receipt requested 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)
</Table>
(Continued on following page)
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OPTIONEE: WILLIAM D. MILLER - 150,000 SHARES
<Table>
<Caption>
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SCHEDULE 1
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Grant Date October 6, 2000
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Strike Price $6.8125
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Number of Shares 150,000
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Expiration Date Ten (10) years from the Grant Date
- --------------------------------------------------------------------------------
</Table>
Executed to be effective as of the Grant Date.
BINDVIEW DEVELOPMENT 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, President and Chief William D. Miller
Executive Officer, on behalf of the Company
and the Board
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