<PAGE> 1
As filed with the Securities and Exchange Commission on October 29, 1998.
Registration No. 333-____________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------------------
BINDVIEW DEVELOPMENT CORPORATION
(Exact name of registrant as specified in its charter)
TEXAS 76-0306721
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3355 WEST ALABAMA, SUITE 1200
HOUSTON, TEXAS 77098
(Address of Principal Executive (Zip Code)
Offices)
INDIVIDUAL STOCK OPTION GRANTS ISSUED PURSUANT TO THE
BINDVIEW DEVELOPMENT CORPORATION STOCK OPTION PLAN
(Full title of the plans)
--------------------------
SCOTT R. PLANTOWSKY
CHIEF FINANCIAL OFFICER
BINDVIEW DEVELOPMENT CORPORATION
3355 WEST ALABAMA, SUITE 1200
HOUSTON, TEXAS 77098
(Name and address of agent for service)
713/843-1799
(Telephone number, including area code, of agent for service)
With Copy to:
FULBRIGHT & JAWORSKI L.L.P.
1301 MCKINNEY, SUITE 5100
HOUSTON, TEXAS 77010-3095
(713) 651-5151
ATTENTION: ROBERT F. GRAY, JR.
--------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==========================================================================================================================
TITLE OF SECURITIES TO AMOUNT TO BE REGISTERED PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
BE REGISTERED OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION FEE
SHARE (1) PRICE (1)
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par 952,093 shares (2) $17.25 $16,423,605 $4,566
value per share
==========================================================================================================================
(1) Estimated in accordance with Rule 457(c) and (h) solely for the purpose of
calculating the registration fee on the basis of the average of the high
and low prices of the Common Stock as reported by the Nasdaq Stock Market
on October 21, 1998.
(2) Represents the aggregate number of shares of Common Stock that may be
issued under two individual option agreements. Includes an indeterminable
number of shares of Common Stock issuable as a result of the anti-dilution
provisions of the BindView Development Corporation Stock Option Plan.
=========================================================================================================================
</TABLE>
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are hereby incorporated by reference in this
Registration Statement:
1. The Amendment No. 4 to Registration Statement on Form S-1 of
BindView Development Corporation, a Texas corporation (the "Registrant"), (Reg.
No. 333-52883) filed with the Securities and Exchange Commission (the
"Commission") on July 23, 1998;
2. The Quarterly Report on Form 10-Q for the quarterly period ended
June 30, 1998 of the Registrant, filed August 13, 1998 with the Commission; and
3. The description of the Registrant's common stock, no par value per
share (the "Common Stock"), contained in Amendment No. 4 to the Registration
Statement on Form S-1 of the Registrant, (Reg. No. 333-52883) filed with the
Commission on July 23, 1998.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), subsequent to the date of the filing hereof and prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 2.02-1 of the Texas Business Corporation Act ("Article 2.02-1")
provides that any director or officer of a Texas corporation may be indemnified
against judgments, penalties, fines, settlements and reasonable expenses
actually incurred by him in connection with or in defending any action, suit or
proceeding in which he is a party by reason of his position. With respect to any
proceeding arising from actions taken in his official capacity as a director or
officer, he may be indemnified so long as it shall be determined that he
conducted himself in good faith and that he reasonably believed that his conduct
was not opposed to the corporation's best interests. In cases not concerning
conduct in his official capacity as a director or officer, a director or officer
may be indemnified as long as he reasonably believed that his conduct was not
opposed to the corporation's best interests. In the case of any criminal
proceeding, such indemnification is mandatory. The Registrant's Bylaws provide
for indemnification of its present and former directors to the fullest extent
provided by Article 2.02-1. The Registrant currently maintains directors' and
officers' insurance to reimburse the Registrant in the event that
indemnification of a director or officer is required.
The Registrant's Bylaws further provide for indemnification of
directors and officers against reasonable expenses incurred in connection with
the defense of any such action, suit or proceeding in advance of the final
disposition of the proceeding.
II-1
<PAGE> 3
The Registrant's Articles of Incorporation eliminate the liability of
directors for monetary damages for an act or omission committed in the
director's capacity as a director, except to the extent a director is found
liable for (i) a breach of such director's duty of loyalty to the Registrant or
its shareholders, (ii) an act or omission not in good faith that constitutes a
breach of duty of such director to the Registrant or an act or omission that
involves intentional misconduct or a knowing violation of the law, (iii) a
transaction from which such director received an improper benefit, whether or
not the benefit resulted from an action taken within the scope of the director's
office or (iv) an act or omission for which the liability of a director is
expressly provided by an applicable statute.
The Registrant's Articles of Incorporation further limit a director's
liability if the Texas Business Corporation Act, the Texas Miscellaneous
Corporation Laws Act or any other applicable Texas statute is hereafter amended
to authorize the further elimination or limitation of the liability of the
directors of the Registrant. If such applicable statute does hereafter eliminate
or limit a director's liability, then the liability of a director of the
Registrant shall be limited to the fullest extent permitted by the Texas
Business Corporation Act, the Texas Miscellaneous Corporation Laws Act and such
other applicable Texas statute, as so amended, and such limitation of liability
shall be in addition to, and not in lieu of, the limitation on the liability of
a director of the Registrant provided by the Articles of Incorporation.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 - Amended and Restated Articles of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.1 to Amendment
No. 4 to the Registration Statement on Form S-1 of the
Registrant, (Reg. No. 333-52883) filed with the Commission on
July 23, 1998 (the "Form S-1")).
4.2 - Bylaws of the Registrant (incorporated by reference to Exhibit
3.2 to the Form S-1).
4.3 - Form of Common Stock Certificate (incorporated by reference to
Exhibit 4.2 to the Form S-1).
4.4 - BindView Development Corporation Stock Option Plan
(incorporated by reference to Exhibit 10.2 to the Form S-1).
4.5* - Nonqualified Stock Option Agreement dated April 15, 1997,
between the Registrant and Scott R. Plantowsky.
4.6* - Grant of Stock Option dated May 13, 1996, between the
Registrant and Christopher J. Sole, as amended by that certain
Grant of Stock Option - Agreement and Amendment No. 1 dated
December 31, 1996.
5.1* - Opinion of Fulbright & Jaworski L.L.P.
23.1* - Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.2* - Consent of Fulbright & Jaworski L.L.P. (included in Exhibit 5.1
to this Registration Statement).
24.1* - Powers of Attorney (contained on page II-4).
* Filed herewith.
II-2
<PAGE> 4
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment hereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
Provided, however, that paragraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), that are incorporated by reference in this Registration
Statement.
2. That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Houston, Texas on October 29, 1998.
BINDVIEW DEVELOPMENT CORPORATION
/s/ ERIC J. PULASKI
------------------------------------------
Eric J. Pulaski
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints each of Eric J. Pulaski and Scott R.
Plantowsky his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same and all
exhibits thereto, and all documents in connection therewith, with the Securities
and Exchange Commission, granting said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his or their substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ ERIC J. PULASKI Chairman of the Board, President and October 29, 1998
- ----------------------------------------- Chief Executive Officer
Eric J. Pulaski (Principle Executive Officer)
/s/ SCOTT R. PLANTOWSKY Director, Vice President and October 29, 1998
- ----------------------------------------- Chief Financial Officer
Scott R. Plantowsky (Principle Financial and
Accounting Officer)
/s/ CHRISTOPHER J. SOLE Director, Vice President and October 29, 1998
- ----------------------------------------- Chief Operating Officer
Christopher J. Sole
Director October 29, 1998
- -----------------------------------------
Peter L. Bloom
Director October 29, 1998
- -----------------------------------------
John J. Moores
/s/ RICHARD A. HOSLEY II Director October 29, 1998
- -----------------------------------------
Richard A. Hosley II
</TABLE>
II-4
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Description
-------------- -----------------------------------------------------------------
<S> <C>
4.1 - Amended and Restated Articles of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.1 to Amendment
No. 4 to the Registration Statement on Form S-1 of the
Registrant, (Reg. No. 333-52883) filed with the Commission on
July 23, 1998 (the "Form S-1")).
4.2 - Bylaws of the Registrant (incorporated by reference to Exhibit
3.2 to the Form S-1).
4.3 - Form of Common Stock Certificate (incorporated by reference to
Exhibit 4.2 to the Form S-1).
4.4 - BindView Development Corporation Stock Option Plan
(incorporated by reference to Exhibit 10.2 to the Form S-1).
4.5* - Nonqualified Stock Option Agreement dated April 15, 1997,
between the Registrant and Scott R. Plantowsky.
4.6* - Grant of Stock Option dated May 13, 1996, between the
Registrant and Christopher J. Sole, as amended by that certain
Grant of Stock Option - Agreement and Amendment No. 1 dated
December 31, 1996.
5.1* - Opinion of Fulbright & Jaworski L.L.P.
23.1* - Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.2* - Consent of Fulbright & Jaworski L.L.P. (included in Exhibit 5.1
to this Registration Statement).
24.1* - Powers of Attorney (contained on page II-4).
</TABLE>
* Filed herewith.
II-5
<PAGE> 1
EXHIBIT 4.5
NEITHER THIS OPTION NOR THE UNDERLYING COMMON SHARES HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933. THE COMPANY WILL NOT TRANSFER THIS OPTION OR THE
UNDERLYING COMMON SHARES UNLESS (i) THERE IS AN EFFECTIVE REGISTRATION COVERING
SUCH OPTION OR SUCH SHARES, AS THE CASE MAY BE, UNDER THE SECURITIES ACT OF 1933
AND APPLICABLE STATE SECURITIES LAWS, (ii) IT FIRST RECEIVES A LETTER FROM AN
ATTORNEY, ACCEPTABLE TO THE BOARD OF DIRECTORS OR ITS AGENTS, STATING THAT IN
THE OPINION OF THE ATTORNEY THE PROPOSED TRANSFER IS EXEMPT FROM REGISTRATION
UNDER THE SECURITIES ACT OF 1933 AND UNDER ALL APPLICABLE STATE SECURITIES LAWS,
OR (iii) THE TRANSFER IS MADE PURSUANT TO RULE 144 UNDER THE SECURITIES ACT OF
1933.
NONQUALIFIED STOCK OPTION AGREEMENT
OF
BINDVIEW DEVELOPMENT CORPORATION
Bindview Development Corporation (the "Company") hereby grants to Scott
Plantowsky (the "Optionee"), the option to purchase from the Company up to but
not exceeding in the aggregate 35,000 shares of Common Stock, having no par
value, of the Company ("Common Stock") at $33.50 per share, subject to the
following terms and conditions and to the terms and conditions of the Company's
Stock Option Plan (the "Plan"):
1. Exercise. (a) Except as provided herein, the Option granted hereby
shall vest and become exercisable by the Optionee in the amounts and on the
dates listed below:
<TABLE>
<CAPTION>
Date Exercisable Number of Shares
---------------- ----------------
<S> <C>
Immediately 8,750
January 1, 1998 8,750
July 1, 1998 4,375
January 1, 1999 4,375
July 1, 1999 4,375
January 1, 2000 4,375
</TABLE>
Notwithstanding the above, each option granted to Optionee pursuant hereto shall
be immediately accelerated and become fully vested if (i) the Optionee's
employment with the Company is terminated by the Optionee with Good Reason, as
defined in the Employment Agreement dated April ___, 1997 (the "Employment
Agreement"), (ii) the Optionee's employment with the Company is terminated by
reason of Optionee's death or disability, and (iii) upon the occurrence of a
Change in Control. As used herein "Change in Control" means (i) the acquisition
by any entity or group of beneficial ownership (within the meaning of Rule
<PAGE> 2
13d-3 promulgated under the Securities Exchange Act of 1934) of fifty percent
(50%) or more of the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of
directors, (ii) the approval by the shareholders of the Company of any
reorganization, merger or consolidation, or sale or other disposition of all or
substantially all of the assets of the Company, or (iii) the approval by the
shareholders of the Company of a complete liquidation or dissolution of the
Company.
If the Optionee's employment with the Company is terminated by the
Company for any reason other than for "Cause" (as defined in the Employment
Agreement), the Company may, at its election, either (i) immediately accelerate
and fully vest all unvested Options hereunder, or (ii) immediately accelerate
and fully vest one-half of the unvested Options hereunder and pay Optionee
$1,000,000 in cash within thirty (30) days.
Once available for exercise in accordance with the foregoing,
unexercised shares shall remain subject to the provisions of this Option until
termination in accordance with the terms of Paragraph 2 hereof. This Option may
be exercised either in whole or in part and, if in part, from time to time in
part; provided, that this option may not be exercised for less than 500 shares
of Stock (or such lesser number of shares of Stock as is covered by this
Option). Further, that this Option may only be exercised by the Optionee for the
purchase of whole Option Shares and not fractions thereof unless the Company
otherwise agrees.
(b) The Company agrees that the Stock so purchased shall be
and are deemed to be issued to the Optionee hereof as the record owner of such
shares as of the close of business on the date on which this Option shall have
been exercised and payment made for such shares as provided above.
(c) Except as provided in Section 5(a) below, this Option may
be exercised solely by the Optionee during his lifetime or after his death by
the person or persons entitled thereto under his will or the laws of descent and
distribution or pursuant to a qualified domestic relations order as defined by
the Internal Revenue Service Code of 1986, as amended (the "Code") or Title I of
the Employee Retirement Income Security Act, or the rules thereunder ("ERISA").
(d) The purchase price of the shares as to which the Option is
exercised shall be paid in full at the time of exercise. Such purchase price
shall be payable in cash or, at the option of the Optionee, in Common Stock
theretofore owned by such Optionee equal in value to the full amount of the
purchase price (or any combination of cash and such Common Stock). For purposes
of determining the amount, if any, of the purchase price satisfied by payment in
Common Stock, such Common Stock shall be valued at its fair market value on the
date of exercise. Any Common Stock delivered in satisfaction of all or a portion
of the purchase price shall be appropriately endorsed for transfer and
assignment to the Company. The Optionee shall not be or have any of the rights
or privileges of a shareholder of the Company in respect of any shares
purchasable upon the exercise of any part of the Option unless and until
certificates representing such shares shall have been issued by the Company to
the Optionee.
<PAGE> 3
2. Termination. The Option hereby granted shall terminate and be of no
force and effect with respect to any shares not previously purchased by the
Optionee upon the earlier to occur of the following:
(a) ten (10) years from the date of grant of this Option as
set forth on the signature page hereto; or
(b) twelve (12) months after termination of employment of the
Optionee if Optionee terminates his employment without Good Reason (as
defined in the Employment Agreement); or
(c) twenty-four (24) months after termination of employment of
the Optionee for any other reason.
If, three months prior to the expiration date specified above, the
Common Stock is not then traded on the New York Stock Exchange, American Stock
Exchange, or the NASDAQ, Optionee shall have the right (the "put") to require
the Company to purchase all or any portion of the Common Stock acquired by
Optionee upon the exercise of his option hereunder at a price equal to the fair
market value of such shares of Common Stock. The put option shall be exercised
by delivery of written notice to the Company and the closing of the put
transaction shall take place at the Company's principal executive offices on the
date specified in such notice, which date shall not be more than ten (10) days
after the date the notice is delivered. As used in this Agreement, the fair
market value of a share of Common Stock shall be equal to 1.56 times the gross
sales of the Company during the twelve (12) month period ending on the last day
of the month immediately preceding the date on which such notice is given,
divided by the number of shares of outstanding Common Stock at such date on a
fully diluted basis under generally accepted accounting principles.
Notwithstanding the foregoing, the Company may delay exercise of the put
hereunder if it extends the expiration date of the Option under the Plan and
this Agreement for six months and, if the Common Stock is traded on the New York
Stock Exchange, American Stock Exchange or NASDAQ before the end of such six
month extension, the Optionee's put shall terminate. The Company may further
delay the exercise of the put by an indefinite renewal of such six month
extensions.
3. Method of Exercise. Subject to the limitations set forth herein,
this Option may be exercised by written notice mailed or delivered to Bindview
Development Corporation 3355 West Alabama, Suite 1200, Houston, Texas 77098,
which notice shall (a) state the number of shares with respect to which the
Option is being exercised, and (b) be accompanied by either Common Stock or a
check, cash or money order payable to the Company in the full amount of the
purchase price.
4. Optionee Representations. (a) The Optionee hereby represents and
acknowledges that he is acquiring this Option and the underlying shares for his
own account for investment and not with a view to, or for sale in connection
with, the distribution of any interest
<PAGE> 4
in or part thereof, provided that nothing shall prohibit or restrict the sale of
such shares by the Optionee in compliance with the Securities Act of 1933, as
amended, and the rules and regulations thereunder. If any law or regulation
requires the Company to take any action with respect to the Option or shares
covered hereby, the time for delivery thereof, which would otherwise be as
promptly as possible, shall be postponed for the period of time necessary to
take such action.
(b) The Optionee acknowledges that this Option does not
qualify for treatment as an incentive stock option pursuant to the Code.
5. Restrictions on Transfer.
(a) The Optionee's rights hereunder are personal. The Optionee
may not transfer Optionee's rights or interest in this Option other than by will
or by the laws of descent and distribution or pursuant to a qualified domestic
relations order as defined by the Code or ERISA. Notwithstanding the foregoing,
if at any time hereunder the Plan is amended to permit such gift, the Optionee
may give all or any portion of his rights hereunder to a member of his immediate
family, a lineal descendant, or a trust, partnership or similar entity for their
exclusive benefit.
(b) Unless this Option or the shares of Stock deliverable upon
the exercise hereof, as applicable, have been registered, this Option and the
certificates representing such shares shall be stamped or otherwise imprinted
with a legend substantially in the following form:
NEITHER THIS OPTION NOR THE SHARES OF STOCK INTO WHICH THIS
OPTION IS EXERCISABLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AND NEITHER THIS OPTION NOR SUCH SHARES MAY BE SOLD, TRANSFERRED
OR OTHERWISE DISPOSED OF EXCEPT AS EXPRESSLY PERMITTED UNDER THE TERMS
OF THIS OPTION.
(c) In connection with the Securities Act of 1933, as amended
("1933 Act"), and other applicable federal and state security laws
(collectively, the "Securities Laws"), upon exercise of this Option, unless a
registration statement or similar filing under such Acts is effective with
respect to the shares issuable upon the exercise of this Option, the Company
shall not be required to issue such shares unless the Company has received
evidence satisfactory to it to the effect that the Optionee is acquiring such
shares for investment and not with a view to the distribution thereof and that
such shares may otherwise be issued without registration under the Securities
Laws. Further, no sale, transfer or other disposition of any of such shares
shall be made by the holder thereof unless (i) such sale, transfer or other
disposition of such shares is covered by an effective registration statement (on
the then appropriate form) under the Securities Laws or (ii) if requested by the
Company, such holder shall have furnished an opinion of holder's counsel (which
opinion and counsel shall be satisfactory to the Company in
<PAGE> 5
it reasonable discretion) with respect to the sale, transfer or other
disposition of such shares as not requiring registration under the Securities
Laws.
6. Arbitration. Any controversy or claim arising out of or relating to
the issuance of this Option, or the issuance or any other matter hereunder
relating to the shares issuable upon the exercise hereof, or the actual or
alleged breach of this Option, or the rights or duties or obligations of the
Company or the Optionee hereunder, shall be settled by binding arbitration
administered by the American Arbitration Association in the City of Houston in
accordance with the rules of such association. Judgment upon the arbitration
award rendered may be entered in any court having jurisdiction thereof, and all
rights or remedies of the Company, the Holder and their successors to the
contrary are hereby expressly waived. The costs in connection with any
arbitration proceeding under this Section 6 shall be assessed against the
parties in the manner decided by the arbitrator(s).
7. Tax Withholding. the Optionee further agrees that the Company may
withhold other cash compensation due to the Optionee in an amount equal to any
required withholding amount under federal or state income tax laws owing as a
result of this Option and that the Optionee will pay to the Company any
additional cash, if necessary, to satisfy such withholding requirement. The
Company, at its option, may also retain and withhold Common Stock issued upon
the exercise of this Option in an amount necessary to satisfy such withholding
requirement.
8. Employment. Nothing within this Option shall be construed to impose
upon the Company or any affiliate any obligation to employ or maintain any other
affiliation with the Optionee.
9. Governing Laws. This Option shall be interpreted, construed, and
enforced in accordance with the laws of the State of Texas to the extent not
otherwise governed by mandatory provisions of the securities laws of the United
States.
Dated: April 15, 1997 BINDVIEW DEVELOPMENT CORPORATION
By: /s/ ERIC PULASKI
-------------------------------
Name: Eric Pulaski
-----------------------------
Title: President
----------------------------
<PAGE> 6
This Option has been accepted
by the undersigned, subject
to the terms and provisions of
the Plan and of this Agreement.
/s/ SCOTT R. PLANTOWSKY
- ----------------------------------------
Print: Scott R. Plantowsky
----------------------------------
<PAGE> 1
EXHIBIT 4.6
BINDVIEW DEVELOPMENT CORPORATION
STOCK OPTION PLAN
GRANT OF STOCK OPTION
Date of Grant: May 13, 1996
This Grant, dated as of the date of grant first stated above (the "Date
of Grant"), is delivered by BINDVIEW DEVELOPMENT CORPORATION, a Texas
corporation ("Company") to CHRISTOPHER J. SOLE (the "Grantee"), who is an
employee or officer of Company.
WHEREAS, the Board of Directors of Company (the "Board") on May 13,
1996, adopted, with subsequent stockholder approval, the BINDVIEW DEVELOPMENT
CORPORATION STOCK OPTION PLAN (the "Plan");
WHEREAS, the Plan provides for the granting of stock options by the
Board to officers and key employees of Company to purchase shares of Common
Stock of Company (the "Stock"), in accordance with the terms and provisions
thereof; and
WHEREAS, the Board considers the Grantee to be a person who is eligible
for a grant of stock options under the Plan, and has determined that it would be
in the best interest of Company to grant the stock option documented herein.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Grant of Option.
Subject to the terms and conditions hereinafter set forth, Company,
with the approval and at the direction of the Board, hereby grants to the
Grantee, as of the Date of Grant, an option to purchase up to 25,893 shares of
Stock at a price of $61. per share. Such option is hereinafter referred to as
the "Option" and the shares of stock purchasable upon exercise of the Option are
hereinafter sometimes referred to as the "Option Shares". The Option, to the
extent permitted by law, is intended to be treated as, an incentive stock option
(as such term is defined under Section 422 of the Internal Revenue Code of 1986,
as amended).
2. Installment Exercise.
Subject to such further limitations as are provided herein, the Option
shall become exercisable in four (4) installments, the Grantee having the right
hereunder to purchase from Company, the following number of Option Shares upon
exercise of the Option, on and after the following dates, in cumulative fashion:
(a) on and after the second anniversary of the Date of Grant,
up to twenty-five percent (25%) (ignoring fractional shares) of the total number
of Option Shares;
(b) on and after the third anniversary of the Date of Grant,
up to an additional twenty-five percent (25%) (ignoring fractional shares) of
the total number of Option Shares;
(c) on and after the fourth anniversary of the date of Grant,
up to an additional
<PAGE> 2
twenty-five percent (25%) (ignoring fractional shares) of the total number of
Option Shares;
(d) on the fifth anniversary of the date of Grant, the
remaining Option Shares.
3. Termination of Option.
(a) Except to the extent the Option is terminated sooner as
hereinafter provided in this Article 3, the Option and all rights hereunder with
respect thereto, to the extent such rights shall not have been exercised, shall
terminate and become null and void after the expiration of (i) five (5) years
from the Date of Grant, or (ii) two (2) years from the date when the Option is
exercisable as to all of the Option shares, whichever last occurs (the "Option
Term").
(b) Upon the occurrence of Grantee's ceasing to be employed by
Company (because of Grantee's death or for any other reason), the Option may be
exercised during the twenty-four (24) month period following the date Grantee's
employment with Company terminates, but only to the extent that the Option was
outstanding and exercisable on the date Grantee's employment with the Company
terminates. In no event, however, shall the Option be exercisable after the
expiration of the Option Term.
(c) In the event of the death of the Grantee, the Option may
be exercised by the Grantee's legal representative(s), but only to the extent
that the Option would otherwise have been exercisable by the Grantee.
(d) Notwithstanding any other provisions set forth herein or
in the Plan, if the Grantee is discharged by the Company for cause, which is
defined for purposes hereof as (i) commission of fraud against the Company by
Grantee, (ii) commission of embezzlement against the Company by Grantee, (iii)
commission of theft against the Company by Grantee, (iv) commission of a felony
against the Company by Grantee, (v) Grantee commits any act of malfeasance or
wrongdoing affecting Company, (vi) Grantee breaches any covenant not to compete
or employment contract with Company, or (vii) Grantee engages in conduct that
would warrant the Grantee's discharge for cause (excluding general
dissatisfaction with the performance of the Grantee's duties), then any
unexercised portion
<PAGE> 3
of the Option shall immediately terminate and be void. The decision as to the
cause of Grantee's discharge shall be made by participants in the Company's
phantom stock plans who are then holding at least ninety percent (90%) of the
total number of all then outstanding Units held by all participants issued
pursuant to all phantom stock plans of Company in existence at such time and
such decision shall be final and binding upon Company and the Grantee. If the
Company has no phantom stock plans in existence at such time, then the decision
as to the cause of a Grantee's discharge shall be made by the Board and such
decision shall be final and binding upon Company and the Grantee.
(e) In the event Grantee during the period of his employment
with Company, or at any time during the twelve (12) months immediately after the
termination of Grantee's employment with Company whether directly or indirectly
or acting alone or in conjunction with others:
(i) directly or indirectly engages in, or is
connected with, any business which directly or indirectly competes with the
business conducted by the Company at the time Grantee's employment with Company
terminates in any of the geographic markets in which Company conducts its
business as of the date Grantee's employment with Company terminates;
(ii) solicits any customer of the Company for the
purpose of obtaining business from such customer of the type being conducted by
Company at the time the Grantee's employment with Company terminates:
(iii) discloses to any person, firm or corporation
any trade, technical secrets, any details of organization or business affairs or
any names of past or present customers or suppliers of the company, or
(iv) induces, attempts to influence, any employee
of the Company to terminate his or her employment with the Company;
then any unexercised portion of the Option shall immediately terminate
and be void upon the discovery by Company of any such actions having been taken
or engaged in by Grantee. The decision of the Board as to the forfeiture of the
Option of Grantee under this subparagraph (e) shall be final.
(f) In the event of (i) the sale of all or substantially all
of the assets of the Company, (ii) a change in control of the Company by the
sale or more than fifty percent (50%) of the voting capital stock of the Company
to persons other than the current shareholders and/or employees of Company as of
the date the Plan is
<PAGE> 4
adopted by the Board, or (iii) the Company shall make an initial public offering
of any of its capital stock, then Company shall give Grantee notice as soon as
reasonably possible that such event will be occurring and immediately prior to
any such event occurring, the Grantee shall have the right to exercise all or
any portion of the Option then owned by him as to Option Shares with regard to
which the Option has not previously been exercised; subject, however, to the
limitation contained in paragraph 3(i) below. Any portion of the Option not
exercised by Grantee on or before the date of occurrence of any event described
in this paragraph 3(f) shall terminate and become null and void.
(g) If Eric Pulaski ("Pulaski"), or his estate, as the case
may be, sells any of the shares of Stock owned by Pulaski (or his estate) prior
to the occurrence of at least one of the events described above in paragraph
3(f) and without approval of participants then holding at least two thirds (?)
of the total number of all then outstanding units held by all participants
issued pursuant to all phantom stock plans of Company in existence at such time,
then Grantee shall be given notice of such sale by Pulaski (or his estate) on or
before the date such sale is consummated. Grantee shall have the right, for a
period of ten (10) days after such notice is given, to exercise all or any
portion of the Option then owned by him as to Option Shares with regard to which
the Option has not previously been exercised; subject, however, to the
limitation contained in paragraph 3(i) below. To the extent the Grantee does not
exercise the Option within such ten (10) day period, then the Option shall only
be exercisable as otherwise provided herein. If Pulaski (or his estate) sells
shares of Stock with the approval of participants holding at least two thirds
(2/3) of the total number of all then outstanding units held by all participants
issued pursuant to all phantom stock plans of Company in existence at such time,
then the provisions of this paragraph 3(g) shall not apply.
(h) Upon the dissolution or liquidation of the Company, or
upon any merger or consolidation of the Company where it is not the surviving
corporation, the Grantee shall be given notice of any such proposed dissolution,
liquidation, merger or consolidation at least thirty (30) days prior to the
occurrence of such event and the Grantee may exercise all or any portion of the
Option within ten (10) days after such notice is given, as to Option Shares with
regard to which the Option has not previously been exercised; subject, however,
to the limitation contained in paragraph 3(i) below. Any portion of the Option
not exercised by Grantee within such ten (10) day period shall terminate and
become null and void.
(i) If any one of the events described in paragraph 3(f) above
shall occur within twelve (12) months of the date Grantee commences rendering
services to Company as a full time employee of Company (the "Initial Twelve
Month Term"), then Grantee shall only
<PAGE> 5
be allowed to exercise the Option as to such number of Option Shares, the excess
of 150% of the fair market value of which at time of exercise over the purchase
price Grantee is required to pay for such Option Shares equals an amount which
when added to the benefits receivable by Grantee from all other stock option
plans and phantom stock plans of Company, will total an amount not grater than
One Million Dollars ($1,000,000). Therefore, if one of the events described in
paragraph 3(f) above occurs before the end of the Initial Twelve Month Term, it
is the intent of Company and Grantee that the total value of all benefits that
Grantee is entitled to receive under this Option and all other stock option
plans and phantom stock plans of Company shall not exceed a total of One Million
Dollars ($1,000,000). The reminder of the Option shall terminate and become null
and void. The fair market value as of the date and in respect to any shares of
stock means the fair market value of shares of Stock determined pursuant to the
following valuation formula. The value of the entire Company as of any date
shall be an amount equal to 1.56 times the net sales of Company for the twelve
month period ending as of the last day of the calendar month immediately
preceding the calendar month in which the valuation date occurs. The fair market
value of a share of Stock as of such date shall be equal to the quotient
obtained by dividing the value of the entire Company so determined by the sum of
the total number of the outstanding shares of Stock and the total number of
outstanding units awarded pursuant to all phantom stock plans maintained by
Company as of such date.
4. Exercise of Option.
(a) The Grantee may exercise the Option with respect to all or
any part of the number of Option Shares then exercisable hereunder by giving the
Company written notice of intent to exercise. The notice of exercise shall
specify the number of Option Shares as to which the Option is to be exercised
and the date of exercise thereof, which date shall be at least five days after
the giving of such notice, unless an earlier time shall have been mutually
agreed upon, and which date shall be no later than thirty (30) days after the
giving of such notice, unless a later time shall have been mutually agreed upon.
(b) Full payment (in U.S. dollars) by the Grantee of the
option price for the Option Shares purchased shall be made on or before the
exercise date specified in the notice of exercise in cash.
On the exercise date specified in the Grantee's notice or as soon
thereafter as it is practicable, Company shall cause to be delivered to the
Grantee, a certificate or certificates for the Option Shares then being
purchased (out of theretofore unissued Stock or required Stock, as Company may
elect) upon full payment
<PAGE> 6
for such Option Shares. The obligation of Company to deliver Stock shall,
however, be subject to the condition that if at any time the Board shall
determine in its discretion that the listing, registration or qualification of
the Option or the Option Shares upon any securities exchange or under any state
or federal law, or the consent or approval of any governmental regulatory body,
is necessary or desirable as a condition of, or in connection with, the Option
or the issuance or purchase of Stock thereunder, the Option may not be exercised
in whole or in part unless such listing, registration, qualification, consent or
approval shall have been effected or obtained free of any conditions not
acceptable to the Board.
(c) If the Grantee fails to pay for any of the Option Shares
specified in such notice or fails to accept delivery thereof, the Grantee's
right to purchase such Option Shares may be terminated by Company. The date
specified in the Grantee's notice as the date of exercise shall be deemed the
date of exercise of the Option, provided that payment in full for the Option
Shares to be purchased upon such exercise shall have been received by such date.
5. Adjustment of and Changes in Stock of Company.
In the event of a later reorganization, recapitalization, change of
shares, stock split, spin-off, stock dividend, reclassification, subdivision or
combination of shares, merger, consolidation, rights offering, or any other
change in the corporate structure or shares of capital stock of Company, the
Board shall make such adjustment as is appropriate in the number and kind of
shares of Stock subject to the Option or in the option price to prevent such
transaction from having a negative effect on the value of such Option based
solely on the number of shares of Stock subject to the Option; provided,
however, that no such adjustment shall give the Grantee any additional benefits
under the Option.
6. No Rights of Stockholders.
Neither the Grantee nor any personal representative shall be, or shall
have any of the rights and privileges of, a stockholder of Company with respect
to any shares of Stock purchasable or issuable upon the exercise of the Option,
in whole or in part, prior to the date of exercise of the Option.
7. Non-Transferability of Option.
During the Grantee's lifetime, the Option hereunder shall be
exercisable only the Grantee, the Option shall not be transferable except, in
case of the death of the Grantee, by will or the laws of descent and
distribution, nor shall the Option be subject to the attachment, execution or
other similar process. In the event of (a) any attempt by the Grantee to
alienate, assign,
<PAGE> 7
pledge, hypothecate or otherwise dispose of the Option, except as provided for
herein, or (b) the levy of any attachment, execution or similar process upon the
rights or interest hereby conferred, Company may terminate the Option by notice
to the Grantee and it shall thereupon become null and void.
8. Employment Not Affected.
The granting of the Option or its exercise shall not be construed as
granting to the Grantee any right with respect to continuance of employment by
the Company. Except as may otherwise be limited by a written agreement between
the Company and the Grantee, the right of the Company to terminate at will the
Grantee's employment with it at any time (whether by dismissal, discharge,
retirement or otherwise) is specifically reserved by Company and acknowledged by
the Grantee.
9. Amendment of Option.
The Option may be amended by the Board at any time (i) if the Board
determines, in its sole discretion, that amendment is necessary or advisable in
the light of any addition to or change in the Internal Revenue Code of 1986 or
in the regulations issued thereunder which are relevant to the Option, or any
federal or state securities law or other law or regulation, which change occurs
after the Date of Grant and by its terms applies to the Option; or (ii) other
than in circumstances described in clause (i), with the consent of the Grantee.
10. Notice.
Any notice to Company provided for in this instrument shall be
addressed to it in care of its President at its executive offices at 3355 W.
Alabama, 12th Floor, Houston, Texas 77098, and any notice to the Grantee shall
be addressed to the Grantee at the current address shown on the payroll records
of Company. Any notice shall be deemed to be duly given if and when delivered
personally or when properly addressed and posted by registered or certified
mail, postage prepaid.
11. Incorporation of Plan of Reference
The Option is granted pursuant to the terms of the Plan, the terms of
which are incorporated herein by reference, and the Option shall be interpreted
in accordance with the Plan. The Board shall interpret and construe the Plan and
this instrument, and its interpretations and determinations shall be conclusive
and binding on the parties hereto and any other person claiming an interest
hereunder, with respect to any issue arising hereunder or thereunder.
<PAGE> 8
12. Governing Law.
The validity, construction, interpretation and effect of this
instrument shall exclusively be governed by and determined in accordance with
the law of the State of Texas. Section captions in this instrument are for
convenience of reference only and in no way affect this instrument's scope or
substance. References to the "IRC" or to the "Internal Revenue Code of 1986" are
to such Code as amended, and to any successor provisions to the provisions cited
in the Plan or this instrument.
IN WITNESS WHEREOF, Company has caused a duly authorized officer to
execute this Grant of Stock Option, and the Grantee has placed his or her
signature hereon, effective as of the Date of Grant.
BINDVIEW DEVELOPMENT CORPORATION
ACCEPTED AND AGREED:
By /s/ ERIC J. PULASKI
------------------------------
President
By /s/ CHRISTOPHER J. SOLE
-------------------------------------
CHRISTOPHER J. SOLE, Grantee
<PAGE> 9
BINDVIEW DEVELOPMENT CORPORATION
GRANT OF STOCK OPTION - AGREEMENT AND AMENDMENT NO. 1
THIS AGREEMENT AND AMENDMENT NO. 1 dated December 31, 1996
("Agreement") to the GRANT OF STOCK OPTION (the "Original Grant"), dated May 13,
1996 by BindView Development Corporation ("Company") and accepted by Christopher
J. Sole (the "Grantee"), under the Company's Stock Option Plan ("Stock Option
Plan"), modifies the Original Grant, (Original Grant, as herein modified, being
"Grant"), as follows:
1. ISOs and NQSOs Granted. Original Grant is modified by the
following:
a. A fourth recital is added before "NOW, THEREFORE,",
"WHEREAS, the Board has also determined that it would be in the best
interest of Company to grant the non-qualified stock option documented herein.
b. There is added at the end of Original Grant ss.1.
"In particular, to the extent any portion of the Option becomes exercisable in a
year, where the fair market value of the underlying Option Shares at that time
exceeds $100,000, then such below market priced portions of the Option and the
portions of the Option for Option Shares in excess of $100,000 are then
designated as non-qualified stock options ("NQSOs"). Additionally, if Grantee
exercises any portion of the Option subsequent to the period three months after
the date of termination of his employment with Company or one year after his
death or disability, pursuant to paragraph 3 of this Agreement, then any portion
of the Option so exercised shall not be treated as an incentive stock options
but rather as further NQSOs, granted to Grantee pursuant to the Original Grant
as modified herein.
2. Option Term. Original Grantss. 3(a)(ii) is modified by changing "two
(2) years" to "three (3) years".
3. ISO Terms. Original Grant ss. 3(b) is deleted and replaced so the
new ss. 3(b) would read as follows:
"(b) Unless terminated sooner in accordance with paragraphs 3(a), 3(d), 3(e), or
3(h), any portion of the Option not by then exercisable shall terminate on the
date of termination of Grantee's employment with Company for any reason
whatsoever. Any portions of the Option that are exercisable as of the date of
termination of Grantee's employment with Company shall terminate, to the extent
not previously exercised, upon the occurrence of the first of the following
events.
(i) the date specified in Original Grant ss. 3(a) but in no
event later than the expiration of 10 years from the date of Grant, except that
Options granted to an employee who is a more than 10% shareholder of the Company
shall expire 5 years from the Date of Grant, pursuant to IRC ss.ss. 422(b) &
422(c)(5);
(ii) the date on which Grantee's employment with Company
terminates, if such termination be by act of the Company for cause other than
death or Work-related Disability, with
<PAGE> 10
cause as defined in paragraph ss. 3(d) [as modified in Section 5 below];
(iii) the expiration of 90 days from the Grantee's termination
as an employee of the Company if such termination be by act of the Grantee for
any reason whatsoever or by act of the Company without cause, pursuant to IRC
ss. 422(a)(2);
(iv) the expiration of twelve (12) months from the date of
Grantee's termination as an employee of the Company due to work-related
disability as permitted by IRC ss. 422(c)(6), and twelve months from the date of
Grantee's death if Option is then in effect.
(v) the date specified in paragraph 3(d), 3(e) or 3(h).
Reference to "death" in Original Grant ss. 3(c) is changed to "death or total
and permanent disability".
4. Reasonable Period to Take Up Option. In addition, there is added at
the end of paragraph 3(b) [as modified above] the following:
"Notwithstanding the preceding language of paragraph ss. 3(b) [as
modified herein] and any terms to the contrary in the Stock Option Plan, Grantee
and the Company agree that if Grantee ceases to be an employee of the Company
for any reason, except if the Option terminates pursuant to paragraphs 3(a),
3(d), 3(e) or 3(h), Grantee shall have the right to exercise the Option for
Option Shares exercisable on the date of termination, from that date until the
date which is three (3) years following the date on which Grantee's employment
with Company terminates. It is further acknowledged that if Grantee exercises
any portion of the Option subsequent to the period three months after the date
of his termination of employment with Company or one year after his death or
disability, then any portion of the Option so exercised shall not be treated as
an incentive stock option but rather as further NQSOs, granted to Grantee
pursuant to the Original Grant as modified herein.
<PAGE> 11
5. Option Termination Where Termination for Cause. Original Grant ss.
3(d) is modified by adding at the end the following:
"For the purposes of paragraph 3(d), Grantee shall be treated as having
committed act(s) referred to in items (i) through (vii) only after the good
faith determination made by participants in the Company's phantom stock plans,
as referred to in paragraph 3(d), provided that there are at that time at least
eight (8) such participants, and Grantee is provided a reasonable opportunity to
present his position to such participants before and in connection with their
determination. If there are less than eight (8) participants at the time a
determination is to be made, then such determination may be made only by final
adjudication made by court(s) of competent jurisdiction, mutual assent in lieu
of Company action, or confirmation by independent arbitration as provided under
Grantee's Employment Agreement with the Company. Additionally, in the event of
any of the causes referred to in items (v) or (vii) Grantee shall receive
specific notice of acts complained of and a reasonable opportunity to cure
before further action to terminate the Option is permitted, unless irreparable
harm has already been caused to the Company."
6. Option Termination for Limited Non-compete Violations. Original
Grant ss. 3(e) is modified by adding at the end the following:
"Notwithstanding the preceding language of paragraph 3(e)(iii), this paragraph
3(e) shall not apply in the case of any disclosures of any documents, materials
or other information generally known in the industry or known to Grantee before
becoming employed by Company or independently acquired by him after termination
of employment with Company. In addition, after Grantee's employment with Company
terminates, the restrictions contained in paragraph 3(e)(i) and 3(e)(ii) shall
not continue longer than the period for which Grantee continues to receive
service pay from the Company. However, the restrictions contained in paragraphs
3(e)(iii) and 3(e)(iv) shall continue as provided in paragraph 3(e). If Company
fails to pay to Grantee one or more of the severance payments which Grantee is
entitled to receive under and pursuant to the Employment Agreement between
Company and Grantee, then the restrictions on competition with Company,
including solicitations of its customers and employees contained in this
paragraph 3(e) shall terminate."
<PAGE> 12
7. No Forfeiture of Grantee's Option on change of Control. The last
sentence of Original Grant ss. 3(h) is modified by replacing "ten (10) days" in
the second to last sentence with "thirty (30) days". In the final sentence,
replace "ten (10) day period" with "thirty (30) day period" and add at the end
thereof "(except in the event of a merger or consolidation, if and to the extent
the surviving corporation allows the Option to continue with regard to shares of
the surviving corporation, then the Option shall be allowed to continue with
regard to shares of the surviving corporation as allowed by the surviving
corporation.
8. 12-Month Stock Payout Cap of $1 Million. Original Grant ss. 3(i) is
deleted and replaced so the new 3(i) would read in its entirety as follows:
(i) If any one of the events described in paragraph 3(f) above shall
occur (meaning that the event occurred and the transaction closed) within twelve
(12) months of May 16, 1996 (Grantee's employment commencement date with
Company) (the "Initial Twelve Month Term"), then Grantee shall only be allowed
to exercise the Option as to such number of Option Shares, the excess of the
fair market value of which at time of exercise over the purchase price Grantee
is required to pay for such Option Shares equals an amount which when added to
the benefits receivable by Grantee (net of exercise price, if any, paid by
Grantee) from all other stock option plans and phantom stock plans of Company,
will total an amount not greater than One Million Dollars ($1,000,0000).
Therefore, if one of the events described in paragraph 3(f) above occurs before
the end of the Initial Twelve Month Term, it is the intent of Company and
Grantee that the total value of all benefits that Grantee is entitled to receive
under this Option and all other stock option plans and phantom stock plans of
Company (net of exercise price, if any, paid by Grantee) shall not exceed a
total of One Million Dollars ($1,000,0000). The remainder of the Option shall
terminate and become null and void.
9. Cashless Exercise at No Cash Cost to Company to Preserve Grantee's
Option. Add at the end of the first paragraph of Original Grant ss. 4(b):
"except that to the extent any portions of the Option are NQSOs, the Company
hereby agrees that with regard to any portions of the Option which are then
exercisable, if the fair market value of the Option Shares exceeds the option
price, the Company, on Grantee's request would exchange the NQSOs for Option
Shares. The NQSOs so exchanged would be valued at an amount equal to the excess
of the fair market value of the Option Shares covered by the NQSOs being
exchanged over the option price required to be paid by Grantee
<PAGE> 13
for such Option Shares. This will allow Grantee the use of the spread between
the option price and the fair market value of the Option Shares for purchase of
Options Shares, without the need for cash payment of purchase price. Grantee
agrees to bear the cost of taxes incurred (for which the Company shall receive a
tax deduction). For the purposes of this paragraph, the term "fair market value
of the Option Shares" shall mean the price per share last paid by investor(s) in
a single purchase of $200,000 or more of Company stock provided such transaction
occurred within six months prior to Grantee's request; or if no such transaction
has occurred within the previous six (6) month period then it shall mean the
fair market value of the Option Shares based on the then current whole Company
valuation multiplied by the percentage represented by the Option Shares covered
by the NQSO's being exchanged with Company. If the Company and Grantee cannot
agree on the Company valuation, the Company valuation shall be determined by
independent appraisal with appraiser(s) selected by mutual consent of Grantee
and Company and costs of appraisal shared equally by Company and Grantee.
10. Stock Position; Adjustments. Original ss. 5 is modified as follows:
At the beginning of Original Grant ss. 5, the following paragraph
is added:
"Total shares for which Grantee is granted options in Section 1 shall
equal 4.0% of the Company's total Fully Diluted Shares. This final calculation
of such fully diluted shares shall be made assuming the exercise on all
outstanding rights, options and warrants ("Rights") to acquire Common Stock of
the Company outstanding as of December 31, 1996 and with respect to convertible
preferred stock and convertible debt instruments which are convertible into the
Company's Common Stock ("Convertible Securities") which are outstanding as of
December 31, 1996, assuming the conversion of all Convertible Securities
outstanding or issuable upon exercise of Rights existing as of December 31,
1996.
11. Miscellaneous. Original Grant ss.ss. 11 and 12, are modified by the
following:
(a) In original Grant ss. 11, after references to "Plan" insert
"and this Agreement", and delete "and this instrument".
<PAGE> 14
(b) Add to Original Grant ss. 12, the following:
"Section captions in the Original Grant and in this Agreement are for
convenience of reference only and in no way affect the scope or substance of the
Original Grant or this Agreement. References to the "IRC or to the "Internal
Revenue Code of 1986" are to such Code as amended, and to any successor
provisions to the provisions cited in this Plan or this Agreement. Any dispute,
difference or question arising under the Original Grant as modified by this
Agreement shall be resolved at the request of either the Company or Grantee
through binding arbitration. Such arbitration shall be conducted under the rules
and procedures of the American Arbitration Association by one or more
arbitrators appointed in accordance with such rules. Judgment upon any award by
the arbitrator may be entered in any court having jurisdiction. In the event
that either party must resort to legal action to enforce its right under this
Agreement, the prevailing party, in addition to other relief will be entitled to
collect its costs and expenses including reasonable attorney's fee and costs,
whether or not suit is actually brought.
IN WITNESS WHEREOF, the parties hereto have themselves or through a
duly authorized officer duly executed this Agreement as of the day and year set
forth above.
BINDVIEW DEVELOPMENT CORPORATION
By /s/ ERIC PULASKI
------------------------------------
Eric Pulaski, President & CEO
GRANTEE: CHRISTOPHER J. SOLE
/s/ CHRISTOPHER J. SOLE
--------------------------------------
CHRISTOPHER J. SOLE
<PAGE> 1
EXHIBIT 5.1
FULBRIGHT & JAWORSKI L.L.P.
A Registered Limited Liability Partnership
1301 McKinney, Suite 5100 houston
Houston, Texas 77010-3095 washington, d.c.
telephone: 713/651-5151 austin
san antonio
facsimile: 713/651-5246 dallas
new york
los angeles
london
hong kong
October 29, 1998
BindView Development Corporation
3355 West Alabama, Suite 1200
Houston, Texas 77098
Gentlemen:
We have acted as counsel for BindView Development Corporation, a Texas
corporation (the "Registrant"), in connection with the registration under the
Securities Act of 1933 of 952,093 shares (the "Shares") of the Registrant's
common stock, no par value per share, which are to be offered pursuant to
individual stock option grants (the "Grants") upon the terms and subject to the
conditions set forth in the Registrant's Stock Option Plan (the "Option Plan").
In connection therewith, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the Amended and
Restated Articles of Incorporation of the Registrant, the Bylaws of the
Registrant, the Grants, the Option Plan, the records of relevant corporate
proceedings with respect to the offering of the Shares and such other documents
and instruments as we have deemed necessary or appropriate for the expression of
the opinions contained herein. We also have examined the Registrant's
Registration Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission with respect to the Shares.
We have assumed the authenticity and completeness of all records,
certificates and other instruments submitted to us as originals, the conformity
to original documents of all records, certificates and other instruments
submitted to us as copies, the authenticity and completeness of the originals of
those records, certificates and other instruments submitted to us as copies and
the correctness of all statements of fact contained in all records, certificates
and other instruments that we have examined.
Based on the foregoing, and having regard for such legal considerations
as we have deemed relevant, we are of the opinion that the Shares have been duly
and validly authorized for issuance and, when issued in accordance with the
terms of the Option Plan, will be duly and validly issued, fully paid and
nonassessable.
The opinions expressed herein relate solely to, are based solely upon
and are limited exclusively to the laws of the State of Texas and the federal
laws of the United States of America, to the extent applicable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ FULBRIGHT & JAWORSKI L.L.P.
Fulbright & Jaworski L.L.P.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference into BindView Development Corporation's Registration
Statement on Form S-8 relating to the BindView Development Corporation Stock
Option Plan of our report dated March 31, 1998 (except as to Note 11, which is
as of May 15, 1998), included in the registration statement of BindView
Development Corporation on Form S-1 (File No. 333-52883).
PricewaterhouseCoopers LLP
Houston, Texas
October 28, 1998.
