<PAGE> 1
As filed with the Securities and Exchange Commission on July 24, 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)
BINDVIEW DEVELOPMENT CORPORATION INCENTIVE STOCK OPTION PLAN;
BINDVIEW DEVELOPMENT CORPORATION 1997 INCENTIVE PLAN;
BINDVIEW DEVELOPMENT CORPORATION OMNIBUS INCENTIVE PLAN; AND
BINDVIEW DEVELOPMENT CORPORATION 1998 NON-EMPLOYEE DIRECTOR 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.
----------------------------------
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box.[x]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED SHARE (1) PRICE (1) REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par
value per share 5,136,454 shares $10.00 $51,364,540 $15,153
======================================================================================================================
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457 under the Securities Act of 1933.
(2) Includes 1,832,714 shares to be issued upon the exercise of options granted
and to be granted pursuant to the BindView Development Corporation
Incentive Stock Option Plan, 1,303,740 shares to be issued upon the
exercise of options granted pursuant to the BindView Development
Corporation 1997 Incentive Plan, 1,750,000 shares to be issued upon the
exercise of options granted and to be granted pursuant to the BindView
Development Corporation Omnibus Incentive Plan and 250,000 shares to be
issued upon the exercise of options granted and to be granted pursuant to
the BindView Development Corporation 1998 Non-Employee Director Stock
Option Plan. Also includes an indeterminable number of shares of Common
Stock issuable as a result of the anti-dilution provisions of such plans.
<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 Registration Statement on Form S-1 of BindView Development
Corporation, a Texas corporation (the "Registrant") (Reg. No. 333-52883),
originally filed with the Securities and Exchange Commission (the "Commission")
on May 15, 1998; and
2. The description of the Registrant's Common Stock, no par value
per share, contained in the Registration Statement on Form S-1 of the Registrant
(Reg. No. 333-52883), originally filed with the Commission on May 15, 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.
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,
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<PAGE> 3
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 the Registrant's Registration Statement on Form
S-1 (Reg. No. 333-52883), filed with the Commission
on May 15, 1998).
4.2 - Bylaws of the Registrant (incorporated by reference
to Exhibit 3.2 to the Registrant's Registration
Statement on Form S-1 (Reg. No. 333-52883), filed
with the Commission on May 15, 1998).
4.3 - Form of Common Stock Certificate (incorporated by
reference to Exhibit 4.2 to the Registrant's
Registration Statement on Form S-1 (Reg. No.
333-52883), filed with the Commission on
May 15, 1998).
4.4 - BindView Development Corporation Incentive Stock
Option Plan (incorporated by reference to Exhibit
10.1 to the Registrant's Registration Statement on
Form S-1 (Reg. No. 333-52883), filed with the
Commission on June 23, 1998)
4.5 - BindView Development Corporation 1997 Incentive Plan
(incorporated by reference to Exhibit 10.3 to the
Registrant's to Registration Statement on Form S-1
(Reg. No. 333-52883), filed with the Commission on
June 23, 1998).
4.6 - BindView Development Corporation Omnibus Incentive
Plan (incorporated by reference to Exhibit 10.4 to
the Registrant's Registration Statement on Form S-1
(Reg. No. 333-52883), filed with the Commission on
May 15, 1998).
4.7 - BindView Development 1998 Non-Employee Director
Stock Option Plan (incorporated by reference to
Exhibit 10.5 to the Registrant's Registration
Statement on Form S-1 (Reg. No. 333-52883), filed
with the Commission on May 15, 1998).
5.1 - Opinion of Fulbright & Jaworski L.L.P.
23.1 - Consent of PricewaterhouseCoopers LLP, Independent
Accountants.
23.2 - Consent of Grant Thornton LLP, Independent
Accountants.
23.3 - 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).
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<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.
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<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 July 24, 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 July 24, 1998
------------------------- Chief Executive Officer
Eric J. Pulaski (Principle Executive Officer)
/s/ CHRISTOPHER J. SOLE Director, Vice President and July 24, 1998
------------------------- Chief Operating Officer
Christopher J. Sole
/s/ SCOTT R. PLANTOWSKY Director, Vice President and July 24, 1998
------------------------- Chief Financial Officer
Scott R. Plantowsky (Principle Financial and
Accounting Officer)
/s/ PETER L. BLOOM Director July 24, 1998
-------------------------
Peter L. Bloom
/s/ JOHN J. MOORES Director July 24, 1998
-------------------------
John J. Moores
/s/ RICHARD A. HOSLEY II Director July 24, 1998
-------------------------
Richard A. Hosley II
</TABLE>
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<PAGE> 6
EXHIBIT INDEX
Exhibit Number Description
4.1 - Amended and Restated Articles of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.1
to the Registrant's Registration Statement on Form
S-1 (Reg. No. 333-52883), filed with the Commission
on May 15, 1998).
4.2 - Bylaws of the Registrant (incorporated by reference
to Exhibit 3.2 to the Registrant's Registration
Statement on Form S-1 (Reg. No. 333-52883), filed
with the Commission on May 15, 1998).
4.3 - Form of Common Stock Certificate (incorporated by
reference to Exhibit 4.2 to the Registrant's
Registration Statement on Form S-1 (Reg. No.
333-52883), filed with the Commission on
May 15, 1998).
4.4 - BindView Development Corporation Incentive Stock
Option Plan (incorporated by reference Exhibit 10.1
to the Registrant's Registration Statement on Form
S-1 (Reg. No. 333-52883), filed with the Commission
on June 23, 1998)
4.5 - BindView Development Corporation 1997 Incentive Plan
(incorporated by reference to Exhibit 10.3 to the
Registrant's to Registration Statement on Form S-1
(Reg. No. 333-52883), filed with the Commission on
June 23, 1998).
4.6 - BindView Development Corporation Omnibus Incentive
Plan (incorporated by reference to Exhibit 10.4 to
the Registrant's Registration Statement on Form S-1
(Reg. No. 333-52883), filed with the Commission on
May 15, 1998).
4.7 - BindView Development 1998 Non-Employee Director Stock
Option Plan (incorporated by reference to Exhibit
10.5 to the Registrant's Registration Statement on
Form S-1 (Reg. No. 333-52883), filed with the
Commission on May 15, 1998).
5.1* - Opinion of Fulbright & Jaworski L.L.P.
23.1* - Consent of PricewaterhouseCoopers LLP, Independent
Accountants.
23.2* - Consent of Grant Thornton LLP, Independent
Accountants.
23.3* - 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
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<PAGE> 1
EXHIBIT 5.1
[FULBRIGHT & JAWORSKI L.L.P LETTERHEAD]
July 24, 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 5,136,454 shares of the Registrant's common stock, no
par value per share (the "Shares"), 1,832,714 shares of which are to be offered
upon the terms and subject to the conditions set forth in the Registrant's
Incentive Stock Option Plan (the "Incentive Plan"), 1,303,740 shares of which
are to be offered upon the terms and subject to the conditions set forth in the
Registrant's 1997 Incentive Plan (the "1997 Plan"), 1,750,000 shares of which
are to be offered upon the terms and subject to the conditions set forth in the
Registrant's Omnibus Incentive Plan (the "Omnibus Plan") and 250,000 shares of
which are to be offered upon the terms and subject to the conditions set forth
in the Registrant's 1998 Non-Employee Director Stock Option Plan (the "Director
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 Incentive Plan, the 1997 Plan, the Omnibus Plan, the Director
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 Non-Employee Director 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, the Texas
Business Corporation Act 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
Incentive Stock Option Plan, the BindView Development Corporation 1997
Incentive Plan, the BindView Development Corporation Omnibus Incentive Plan and
the BindView Development Corporation 1998 Non-Employee Director 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
July 24, 1998.
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated February 4, 1997, accompanying the
financial statements of BindView Development Corporation contained in the
Registration Statement and Prospectus of BindView Development Corporation on
Form S-1 (File No. 333-52883), which is incorporated by reference in this
Registration Statement on Form S-8 relating to the BindView Development
Corporation Incentive Stock Option Plan, the BindView Development Corporation
1997 Incentive Plan, the BindView Development Corporation Omnibus Incentive Plan
and the BindView Development Corporation 1998 Non-Employee Director Stock Option
Plan. We consent to the incorporation by reference in this Registration
Statement of the aforementioned report.
Grant Thornton LLP
Houston, Texas
July 24, 1998.
