exv10w1



 






SEPARATION AGREEMENT



This Separation Agreement (“Agreement”) is entered into by mutual agreement by
and between BindView Corporation (“BindView” or “Company”) and RONALD E.
ROSENTHAL (“Executive”) in connection with the Executive’s Resignation for Good
Reason. This Agreement amends (i) the Executive Employment Agreement, (ii) the
Change of Control Agreement, and (iii) any stock or stock option agreement(s),
if any (“Stock Agreement(s)”), in each case between the Executive and the
Company. The agreements referenced in the immediately-preceding sentence are
referred to collectively herein as the “Prior Agreements.” In the case of any
inconsistencies or conflict between any of the Prior Agreements and this
Agreement, the terms of this Agreement shall govern. Each such Prior Agreement
otherwise remains in effect in accordance with its terms. Defined terms used
herein have the meanings set forth in the Prior Agreements unless otherwise
indicated herein.



1. Leave of absence: The Executive will be on a leave of absence from Friday,
April 15, 2005 through Friday, October 15, 2005, inclusive. The latter date
will be his last date of employment with the Company. During such leave of
absence, the Executive will no longer serve as an officer of the Company and
will not hold himself out as having authority to take any action on behalf of
the Company.



2. Transition assistance: During such leave of absence, the Executive will
make himself reasonably available by telephone from time to time during the
Company’s normal working hours, if and as requested by the Company’s chief
operating officer, to assist with transition matters.



3. Salary and bonus: The Executive will continue on salary and current
benefits as set forth in the Executive Employment Agreement during the leave of
absence. The Executive will receive a bonus under the Company’s 2005 corporate
bonus plan only if the Company achieves its interim financial targets under
such plan for the six-month period ending June 30, 2005. This bonus (if any)
will be computed by multiplying (i) the full year bonus amount that would have
been earned by the Executive if the Company achieved its financial targets for
the full year to the same degree that the Company achieved its interim
financial targets for the six-month period ending June 30, 2005, (both as set
forth in the 2005 corporate bonus plan) by (ii) 105/365, which corresponds to
the number of days of the year the Executive was eligible to participate in the
Company’s corporate bonus plan for 2005. The maximum bonus that may be earned
by the Executive under this provision is $50,342.47, i.e., 105/365 of the
Executive’s Bonus Potential at Target of $175,000.00. The calculated bonus
amount, if any, will be paid to the Executive on or before July 31, 2005. The
foregoing will be the Executive’s sole remaining eligibility for bonuses.



4. Severance: The Severance Payment, as defined in the Executive Employment
Agreement, shall be reduced by one-half to reflect the salary to be earned by
the Executive during his leave of absence. The (reduced) Severance Payment
will be paid in equal, twice-monthly installments beginning October 31, 2005
and ending April 15, 2006.



5. Insurance benefits: The Executive will continue on Company-sponsored
insurance as provided in the Executive Employment Agreement through April 15,
2006.



6. Insider-trading policy: Effective Friday, April 15, 2005, the Executive
will no longer be subject to the restrictions of the Company’s insider-trading
policy (but will of course continue to be subject to the applicable laws and
regulations prohibiting trading on the basis of material nonpublic
information).


 









 






7. Stock option vesting: The Executive’s unvested and unexpired stock options
will continue vesting through May 16, 2005, but will not vest any further after
that date except to the extent that paragraph 8 below applies. The Executive’s
last day for exercising vested but unexercised stock options will be Friday,
January 13, 2006; all such options will expire at the market close on that
date.



8. Change of control: If the Company undergoes a Change of Control whose
Change of Control Date is on or before October 15, 2005, then the Executive’s
unvested stock options under the Stock Agreements shall be accelerated to be
100% vested as of the Change of Control Date, and the Executive shall be
entitled to exercise any outstanding options for the same period of time as
though he had Resigned for Good Reason on the day after such Change of Control
Date. If the Change of Control Date is after October 15, 2005, then no
acceleration of vesting shall occur and the Executive shall be entitled to
exercise his then-vested and unexercised stock options only as provided in
paragraph 7 hereof.



9. Release: (a) The Company’s obligations under this Agreement are conditioned
on and subject to the Executive’s signing and delivering to the Company the
form of Release attached as Exhibit A to the Executive Employment Agreement
contemporaneously herewith. (b) If the Executive exercises the Revocation
Right set forth in the form of Release, then this Agreement shall be null and
void, and the provisions of the Prior Agreements shall govern, as though this
Agreement had never been executed.



10. Mitigation not required: Paragraph 6 of the Executive Employment Agreement
shall also apply to the leave of absence period as set forth in paragraph 1
hereof.



11. Noncompetition covenant: Except for tolling as set forth in paragraph 10.4
of the Executive Employment Agreement, the Executive’s noncompetition covenant
shall expire on April 15, 2006.



12. Other: Sections 12 (arbitration) and 13 (general provisions) of the
Executive Employment Agreement are incorporated into this Agreement by
reference as though fully set forth.



EXECUTED the dates written below, to be effective April 15, 2005.




	 	 	 
	AGREED:

BINDVIEW CORPORATION, by:


	 	AGREED:

	 

	 	 
	

Edward L. Pierce, Executive Vice 

President and Chief Financial Officer


	 	

Ronald E. Rosenthal

	 

	 	 
	

Date signed

	 	

Date signed