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As filed with the Securities and Exchange Commission on June 3, 1999
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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BINDVIEW DEVELOPMENT CORPORATION
(Exact name of registrant as specified in its charter)
TEXAS 76-0306721
(State or other jurisdiction of incorporation or (I.R.S Employer
organization) Identification No.)
5151 SAN FELIPE, 22ND FLOOR
HOUSTON, TEXAS 77056
(Address of Principal Executive Offices) (Zip Code)
BINDVIEW DEVELOPMENT CORPORATION 1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
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SCOTT R. PLANTOWSKY
CHIEF FINANCIAL OFFICER
BINDVIEW DEVELOPMENT CORPORATION
5151 SAN FELIPE, 22ND FLOOR
HOUSTON, TEXAS 77056
(Name and address of agent for service)
713/561-4000
(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.
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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
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TITLE OF SECURITIES TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AMOUNT OF
REGISTERED AMOUNT TO BE REGISTERED PRICE PER SHARE (1) AGGREGATE OFFERING PRICE (1) REGISTRATION FEE
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Common Stock, no par 500,000 shares $20.0625 $10,031,250 $2,789
value per share
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(1) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(c) under the Securities Act of 1933, based on the
average of the high and low sale prices of such security on May 28, 1999,
as reported by The Nasdaq Stock Market, Inc.
(2) Includes an indeterminable number of shares of Common Stock issuable as a
result of the anti-dilution provisions of such plans.
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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 Annual Report on Form 10-K of BindView Development Corporation,
a Texas corporation (the "Registrant"), filed with the Securities and Exchange
Commission (the "Commission") on February 23, 1999;
2. The Quarterly Report on Form 10-Q of the Registrant filed with the
Commission on May 17, 1999;
3. The Current Report on Form 8-K of the Registrant filed with the
Commission on February 22, 1999;
4. The Current Report on Form 8-K of the Registrant filed with the
Commission on March 16, 1999, as amended by Amendment No. 1 thereto on Form
8-K/A filed with the Commission on May 7, 1999; and
5. 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
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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.
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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 1999 Employee Stock Purchase Plan (incorporated by reference to
Annex A to the Registrant's Proxy Statement relating to its 1999 Annual Shareholders' Meeting, filed
with the Commission on April 30, 1999).
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 Kost, Forer and Gabbay, Certified Public Accountants (Israel), A Member of Ernst and Young
International
23.4 - 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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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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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 May 28, 1999.
BINDVIEW DEVELOPMENT CORPORATION
/s/ ERIC J. PULASKI
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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.
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Signature Title Date
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/s/ ERIC J. PULASKI Chairman of the Board, President and May 28, 1999
- ---------------------------------- Chief Executive Officer
Eric J. Pulaski (Principle Executive Officer)
/s/ SCOTT R. PLANTOWSKY Director, Vice President and May 28, 1999
- ----------------------------------- Chief Financial Officer
Scott R. Plantowsky (Principle Financial and
Accounting Officer)
Director May 28, 1999
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Peter L. Bloom
Director May 28, 1999
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John J. Moores
/s/ RICHARD A. HOSLEY II Director May 28, 1999
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Richard A. Hosley II
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EXHIBIT INDEX
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Exhibit
Number Description
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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 1999 Employee Stock
Purchase Plan (incorporated by reference to Annex A
to the Registrant's Proxy Statement relating to its
1999 Annual Shareholders' Meeting, filed with the
Commission on April 30, 1999).
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 Kost, Forer and Gabbay, Certified Public
Accountants (Israel), A Member of Ernst and Young
International
23.4 - 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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EXHIBIT 5.1
[LETTERHEAD OF FULBRIGHT & JAWORSKI L.L.P.]
May 28, 1999
BindView Development Corporation
5151 San Felipe, 22nd Floor
Houston, Texas 77056
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 500,000 shares of the Registrant's common stock, no
par value per share (the "Shares"), which are to be offered upon the terms and
subject to the conditions set forth in the BindView Development Corporation 1999
Employee Stock Purchase Plan (the "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 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 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.
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated January 28, 1999, which
appears on page 27 of BindView Development Corporation's Annual Report on Form
10-K for the year ended December 31, 1998 and of our report dated January 28,
1999, except as to Note 14, which is as of March 1, 1999, which appears in
Exhibit 99.3 to the BindView Development Corporation Amendment No. 1 of Current
Report on Form 8-K on Form 8-K/A dated March 1, 1999.
/s/ PRICEWATERHOUSECOOPERS LLP
PricewaterhouseCoopers LLP
Houston, Texas
May 28, 1999.
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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 included in the Annual
Report on Form 10-K of BindView Development Corporation for the year ended
December 31, 1998, which is incorporated by reference in this Registration
Statement on Form S-8 relating to BindView Development Corporation 1999 Employee
Stock Purchase Plan. We consent to the incorporation by reference in this
Registration Statement of the aforementioned report.
/s/ GRANT THORNTON LLP
Grant Thornton LLP
Houston, Texas
May 28, 1999
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EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Employees' Stock Purchase Plan of BindView Development
Corporation, of our report dated February 25, 1999, except for note 14 as to
which the date is March 1, 1999, with respect to the consolidated financial
statements of Netect Ltd. included in the Current Report (Form 8-K) of BindView
Development Corporation filed with the Securities and Exchange Commission.
/s/ KOST, FORER AND GABBAY
Certified Public Accountants (Israel)
A Member of Ernst & Young International
Tel-Aviv, Israel
June 3, 1999
