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As filed with the Securities and Exchange Commission on April 26, 2000
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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BINDVIEW DEVELOPMENT CORPORATION
(Exact name of registrant as specified in its charter)
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Texas 76-0306721
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
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5151 San Felipe, 22nd Floor
Houston, Texas 7056
713/561-4000
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
D.C. Toedt
General Counsel
BindView Development Corporation
5151 San Felipe, 22nd Floor
Houston, Texas 77056
713/561-4000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
Robert F. Gray, Jr.
Fulbright & Jaworski L.L.P.
1301 McKinney, Suite 5100
Houston, Texas 77010-3095
(713) 651-5151
Approximate date of commencement of proposed sale to the public: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
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]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities At, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for he same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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Amount Proposed maximum Proposed maximum Amount of
Title of each class of to be offering price aggregate registration
securities to be registered registered per share (1) offering price (1) fee
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Common Stock, no par value per share 4,185,998 shares $8.03 $33,618,796 $8,875
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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 April 24,
2000, as reported by The Nasdaq Stock Market, Inc.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE
WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS
REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE
COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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PROSPECTUS
4,185,998 SHARES
BINDVIEW DEVELOPMENT CORPORATION
COMMON STOCK
The common stock of BindView Development Corporation is included in the
Nasdaq National Market under the symbol "BVEW".
The shareholders named in this Prospectus under the heading "Selling
Shareholders" are offering all of the shares of common stock offered hereby. We
will not receive proceeds from the sale of these shares but will bear certain
of the expenses incident to the offering and sale of the shares.
The selling shareholders may sell these shares from time to time in the
over-the-counter market, on any stock exchange on which the common stock may be
listed at the time of sale, in private transactions or pursuant to underwriting
agreements at prices related to prices then prevailing involving payment of
customary commissions or discounts. See "Plan of Distribution".
The Common Stock offered by this prospectus involves a high degree of
risk. See "Risk factors" beginning on page 3 for a discussion of certain
matters that you should consider before purchasing our common stock.
These securities have not been approved or disapproved by the Securities
and Exchange Commission or any state securities commission nor has the
Securities and Exchange Commission or any state securities commission passed
upon the accuracy or adequacy of this prospectus. Any representation to the
contrary is a criminal offense.
April 26, 2000
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CONTENTS
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PROSPECTUS SUMMARY......................................................2
RISK FACTORS............................................................3
PROCEEDS................................................................8
SELLING SHAREHOLDERS....................................................8
PLAN OF DISTRIBUTION...................................................10
LEGAL MATTERS..........................................................10
EXPERTS................................................................10
WHERE YOU CAN FIND MORE INFORMATION....................................11
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE......................11
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We have not authorized any selling shareholder, dealer, salesman or other
person to give you any information or to make any representations other than
those contained in this prospectus and in the documents we incorporate into
this prospectus. You should not rely on any information or representations that
are not in this prospectus or in the documents we incorporate into this
prospectus.
This prospectus is not an offer to sell, or a solicitation of an offer to
buy, the securities offered hereby in any jurisdiction to any person to whom it
is unlawful to make an offer or solicitation in that jurisdiction.
Delivery of this prospectus at any time does not imply that the
information contained herein is correct as of any time subsequent to its date.
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PROSPECTUS SUMMARY
OUR COMPANY
BindView Development Corporation develops, markets and supports a suite of
IT Risk Management solutions that manage the safety, integrity and availability
of complex networks operating on Microsoft Windows NT and Novell NetWare
environments. BindView solutions reduce the overall risk and Total Cost of
Ownership of an enterprise's business and e-business infrastructure. Our
primary product line, the BindView EMS software, provides software solutions
for systems administration, security management and enterprise inventory of
local area network ("LAN") assets. The BindView EMS software can be used by
network administrators, security auditors and other information technology
("IT") personnel to proactively identify, diagnose and, in many cases, fix a
wide range of systems management problems, allowing organizations to reduce the
Total Cost of Ownership of enterprise computing before it negatively impacts
the business or e-business infrastructure. As a result of the acquisition of
Entevo Corporation in February 2000, BindView enhances its offering by
providing a complete administration suite for managing multiple Network
Operating Systems (NOS) and Enterprise Directories that form the backbone of
the evolving e-business infrastructure.
Our principal executive offices are located at 5151 San Felipe, 22nd
Floor, Houston, Texas 77056, and our telephone number is 713/561-4000.
THE OFFERING
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Securities offered...................................... 4,185,998 shares of common stock.
Proceeds................................................ We will not receive any proceeds from the sale of the
shares.
Nasdaq symbol........................................... The shares of Common Stock are included in the Nasdaq
National Market under the symbol "BVEW".
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RISK FACTORS
An investment in our common stock involves a high degree of risk. For a
discussion of certain matters that should be considered by prospective
purchasers of our common stock offered hereby, see "Risk Factors" on page 3.
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RISK FACTORS
An investment in the Common Stock offered by this Prospectus involves a
high degree of risk. Accordingly, you should consider carefully the following
risk factors, in addition to the other information concerning BindView and its
business contained in and incorporated into this Prospectus, before purchasing
Shares. This Prospectus contains, in addition to historical information,
forward-looking statements that involve risks and uncertainties. Actual results
could differ materially from the projections included in such statements.
Factors that could cause or contribute to such differences include those
discussed below and elsewhere in this Prospectus.
OUR QUARTERLY AND ANNUAL REVENUES, EXPENSES AND OPERATING RESULTS MAY FLUCTUATE
SIGNIFICANTLY.
Significant fluctuations in our revenues, expenses and operating results
may result from a number of factors, including:
o demand for our products;
o size and timing of significant orders and their fulfillment;
o our ability to develop and upgrade our technology;
o changes in our level of operating expenses;
o our ability to compete in a highly competitive market;
o undetected software errors and other product quality problems;
o changes in our sales incentive plans and staffing of sales
territories; and
o changes in the mix of domestic and international revenues and the
level of international expansion.
Generally, we do not operate with a backlog because we ship our products
and recognize revenue shortly after orders are received. The Company recognizes
revenue in accordance with the Statement of Position No. 97-2 "Software Revenue
Recognition" (SOP 97-2) and Statement of Position No. 98-9 "Modification of SOP
97-2, Software Revenue Recognition, with respect to certain transactions" (SOP
98-9), as applicable. As the Company's sales transactions and product mix
becomes more complex, revenue recognition under SOP 97-2 or SOP 98-9 could
require the Company to defer a significant portion of the total contract and
recognize this deferred revenue in future periods.
Orders booked throughout a quarter may substantially impact product
revenues in that quarter. Our sales also fluctuate throughout the quarter as a
result of customer buying patterns. We base our expenses to a significant
extent on our expectations of future revenues. Most of our expenses are fixed
in the short term, and we may not be able to reduce spending quickly if our
revenues are lower than we had projected. If our revenue levels do not meet our
projections, we expect our operating results to be adversely and
disproportionately affected.
Our quarterly operating results also are subject to certain seasonal
fluctuations. Year-end customer buying patterns and compensation policies based
on annual revenue quotas have caused our revenues to be strongest in the fourth
quarter of the year and to decrease in the first quarter of the following year.
In future periods, we expect that these seasonal trends may cause first quarter
revenues to be significantly lower than the level achieved in the preceding
fourth quarter. However, first quarter revenues in any given fiscal year are
not necessarily indicative of, and should not be used as a basis for prediction
of, higher revenues in any future quarter.
Before January 1, 1998, we provided telephone support free of charge and
sold product upgrades separately or through subscription contracts. We now
require our customers to purchase a subscription to receive product upgrades
and technical support. Unlike software license revenues, which we generally
recognize upon shipment of the product, we recognize subscription contract
revenues ratably over the life of the contract term. As a result, if we derive
a larger percentage of our revenues from subscription contracts, we will
experience an increase in deferred revenue that is likely to decrease our
operating margins. Decreased operating margins may materially adversely affect
our, operating results and financial condition.
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We believe quarter-to-quarter comparisons of our revenues, expenses and
results of operations are not necessarily meaningful. You should not rely on
our quarterly revenues, expenses and results of operations to predict our
future performance.
WE HAVE A LIMITED OPERATING HISTORY.
We have a limited operating history based on our primary products. An
investor in our Company must consider the risks and uncertainties frequently
encountered by software companies in the early stages of development,
particularly those faced by companies in the highly competitive and rapidly
evolving systems management software market. To compete in this market, we
believe that we must devote substantial resources to expanding our sales and
marketing organization and to continue product development. As a result, we
will need to recognize significant quarterly revenues to remain profitable. Our
revenues have increased in recent years, and revenues for recent quarters have
exceeded revenues for the same quarter for the prior year. However, we cannot
be certain that we can sustain these growth rates or that we will remain
profitable on a quarterly or annual basis in the future.
OUR MARKETS ARE HIGHLY COMPETITIVE.
We face competition from different sources. Currently, our products
compete with products from the following organizations:
o providers of security analysis and audit products, such as Axent
o Technologies, Inc., ODS Networks, Inc., ISS Group, Inc. and Network
Associates Inc.;
o providers of stand-alone inventory and asset management products, such as
Tally Systems Corp.;
o providers of LAN desktop management suites, such as Intel Corporation,
Hewlett-Packard Company and Microsoft Corporation;
o providers of event notification and response technology, such as Attention
Software, Inc.;
o providers of Windows NT management and migration tools, such as Mission
Critical Software, FastLane Technologies Inc., and NetIQ Corporation;
o certain management features included in our products compete with the
native tools from Novell, Inc. and third-party tools from certain vendors,
such as Computer Associates, Inc. and other companies;
o providers of enterprise resource planning application add-ons for SAP
security administration and vulnerability assessment, such as BMC
Software, Insite Objects, Inc. and Envive Corp.; and
o providers of network security scanning technology, such as Network
Associates, ISS Group, Inc. and Axent Technologies.
We expect competition in the network management software market to
increase significantly as new companies enter the market and current
competitors expand their product lines and services. Many of these potential
competitors are likely to enjoy substantial competitive advantages, including:
o greater resources that can be devoted to the development, promotion and
sale of their products;
o more established sales channels;
o greater software development experience; and
o greater name recognition.
We also believe that operating system software vendors, particularly
Microsoft and Novell, could enhance their products to include functionality
that we currently provide in our products. If these vendors include our
software functionality as standard features of their operating system software,
our products could become obsolete. Even if the functionality of the standard
software features of these vendors is more limited than ours, there is a
substantial risk that a significant number of customers would elect to keep
this limited functionality rather than purchase additional software.
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To be competitive, we must respond promptly and effectively to the
challenges of technological change, evolving standards and our competitors'
innovations by continuing to enhance our products, services and sales channels.
In addition, we have and may continue to bundle and offer discounts to our
customers. Bundling or discounting our products may result in reduced operating
margins, reduced profitability and increase the complexity of revenue
recognition. Any pricing pressures, reduced margins or loss of market share
resulting from our failure to compete effectively could materially adversely
affect our business.
OUR PRODUCTS ARE SUBJECT TO RAPID TECHNOLOGICAL CHANGE.
The market for our products is characterized by rapid technological
change, frequent new product introductions and enhancements, uncertain product
life cycles, changes in customer demands and evolving industry standards. Our
products could be rendered obsolete if new products based on new technologies
are introduced or new industry standards emerge. We rely heavily on our
relationships with Microsoft and Novell and attempt to coordinate our product
offerings with the future releases of their operating systems. These companies
may not notify us of feature enhancements prior to new releases of their
operating systems in the future. In that case, we may not be able to introduce
products on a timely basis that capitalize on new operating system releases and
feature enhancements.
CLIENT/SERVER COMPUTING ENVIRONMENTS ARE INHERENTLY COMPLEX.
As a result, we cannot accurately estimate our software product life
cycles. New products and product enhancements can require long development and
testing periods, which depend significantly on our ability to hire and retain
increasingly scarce and technically competent personnel. Significant delays in
new product releases or significant problems in installing or implementing new
product releases could seriously damage our business. We have, on occasion,
experienced delays in the scheduled introduction of new and enhanced products
and cannot be certain that such delays will not occur again.
Our future success will depend, in part, upon our ability to enhance
existing products, develop and introduce new products, satisfy customer
requirements and achieve market acceptance. We cannot be certain that we will
successfully identify new product opportunities and develop and bring new
products to market in a timely and cost-effective manner. Further, the
products, capabilities or technologies developed by others may render our
products or technologies obsolete or shorten their life cycles.
WE ARE DEPENDENT UPON CONTINUED GROWTH OF THE MARKET FOR WINDOWS NT AND NOVELL
NETWARE OPERATING SYSTEMS.
We depend upon the success of Microsoft's Windows NT and Novell's NetWare
operating systems. In particular, market acceptance of our products depends on
the increasing complexity of these operating systems and the lack of effective
tools to simplify system administration and security management for these
environments. Although demand for Windows NT and NetWare operating systems has
grown in recent years, we cannot be certain that it will continue to grow. If
the market does continue to grow, we cannot be certain that the market for our
products will continue to develop or that our products will be widely accepted.
If the markets for our products fail to develop or develop more slowly than we
anticipate, our business could be materially adversely affected.
The percentages of our revenues attributable to software licenses for
particular operating system platforms can change from time to time. A number of
factors outside our control can cause these changes, including changing market
acceptance and penetration of the various operating system platforms which we
support and the relative mix of development and installation by value-added
resellers ("VARs") of application software operating on such platforms.
WE DERIVE A MAJORITY OF OUR REVENUES FROM A FEW PRODUCTS.
Majority of our revenues are from the sale of our NOSadmin and
NETinventory products. We anticipate that these products, along with products
additions as a result of the Curasoft, Netect and Entevo acquisitions, will
account for majority or all of all of our revenues for the foreseeable future.
Our future operating results will depend on continued market acceptance of
NOSadmin and NETinventory, introduction of new products from the Curasoft,
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Netect and Entevo acquisitions, enhancements to these products and the
continued development of additional snap-in modules for our Enterprise Console
product. Competition, technological change or other factors could reduce demand
for, or market acceptance of any or all of our products and could substantially
damage our business. Although we currently plan to broaden our product line, we
cannot be certain that we will be able to reduce our product concentration or
that we will be able to generate material revenues from products acquired as a
result of the Curasoft, Netect and Entevo acquisitions.
OUR SALES CYCLE MAY LENGTHEN.
We have sold our products to customer workgroups and corporate divisions.
As a result, our sales cycle has ranged from three to six months. Recently, we
have focused more of our selling effort on products for the customer's entire
enterprise and have found that our sales cycle to enterprises has ranged from
six to twelve months. The sales cycle to enterprises is typically longer for a
number of reasons, including:
o the significant resources committed to an evaluation of network management
software by an enterprise require us to expend substantial time, effort
and money educating them on the value of our products and services; and
o decisions to license and deploy enterprise-wide software generally involve
an evaluation of our software by a significant number of personnel of the
enterprise in various functional and geographic areas, each often having
specific and conflicting requirements.
As a result, we cannot predict the timing and amount of specific sales.
Our inability to complete one or more enterprise-wide sales in a particular
quarter or calendar year could materially adversely affect our business and
could cause our operating results to vary significantly from quarter to
quarter. For more information, see "--Our Quarterly Financial Results are
Subject to Significant Fluctuations".
WE MUST MANAGE CHANGING OPERATIONS.
We have expanded our operations rapidly in recent years. We intend to
continue to expand in the foreseeable future to pursue existing and potential
market opportunities. This rapid growth places a significant demand on
management and operational resources. In order to manage growth effectively, we
must implement and improve our operational systems, procedures and controls on
a timely basis. If we fail to implement and improve these systems, our
business, operating results and financial condition will be materially
adversely affected.
WE ARE DEPENDANT ON KEY PERSONNEL.
Our success depends largely on the efforts of our executive officers,
particularly Eric J. Pulaski, the President and Chief Technology Officer of
BindView. We do not have an employment contract requiring Mr. Pulaski to
continue his employment for any period of time. We do not maintain key man life
insurance policies on any of our executive officers.
We believe that our future success will depend in large part upon our
ability to attract and retain highly skilled research and development,
technical support and sales and marketing personnel. We face intense
competition for qualified personnel, and we cannot be certain that we will
successfully attract and retain additional qualified personnel in the future.
The loss of the services of one or more of our key individuals or the failure
to attract and retain additional qualified personnel could substantially damage
our business.
WE ARE SUBJECT TO RISKS ASSOCIATED WITH INTERNATIONAL SALES AND OPERATIONS.
During 1999, 1998 and 1997, we derived approximately 17%, 10% and 13% of
our revenues, respectively, from sales outside North America. We only recently
opened direct telesales offices outside the United States. We have historically
generated revenues outside North America through indirect channels, including
VARs and other distributors. We are in the early stages of developing our
indirect distribution channels in certain markets outside the United States. We
cannot be certain that we will be able to attract third parties that will be
able to market our products effectively or to provide timely and cost-effective
customer support and service. Our reseller arrangements generally provide that
resellers may carry competing product offerings. We cannot be certain that any
distributor or
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reseller will continue to represent our products. The inability to recruit, or
the loss of, important sales personnel, distributors or resellers could
materially and adversely affect our business.
As we expand our sales and support operations internationally, we
anticipate that international revenues will grow as a percentage of our total
revenues. To successfully expand international sales, we must:
o establish additional international direct telesales offices;
o expand the management and support organizations for our international
sales channel;
o hire additional personnel;
o customize our products for local markets;
o recruit additional international resellers where appropriate; and
o expand the use of our direct telesales model.
If we are unable to generate increased sales through a direct telesales
model, we will incur higher personnel costs without corresponding increases in
revenue, resulting in lower operating margins for our international operations.
In addition, employment policies vary among countries outside the United
States, which may reduce our flexibility in managing headcount and, in turn,
managing personnel-related expenses. If we do not address the risks associated
with international sales in a cost-effective and timely manner, our
international sales growth will be limited, operating margins could be reduced
and our business could be materially adversely affected. However, even if we
are able to successfully expand our international operations, we cannot be
certain that we will be able to maintain or increase international market
demand for our products.
WE HAVE LIMITED PROTECTION OF OUR PROPRIETARY TECHNOLOGY.
Our success depends to a significant degree upon our software and other
proprietary technology. The software industry has experienced widespread
unauthorized reproduction of software products. We rely on a combination of
trademark, trade secret, and copyright law and contractual restrictions to
protect our technology. These legal protections provide only limited
protection. The steps we have taken may deter competitors from misappropriating
our proprietary information. However, we may not be able to detect unauthorized
use or take appropriate steps to enforce our intellectual property rights. If
we litigated to enforce our rights, litigation would be expensive, would divert
management resources and may not be adequate to protect our business. We also
could be subject to claims alleging infringement of third-party intellectual
property rights. In addition, we may be required to indemnify our distribution
partners and end-users for similar claims made against them. Any claims against
us could require us to spend significant time and money in litigation, pay
damages, develop non-infringing intellectual property or acquire licenses to
intellectual property that is the subject of the infringement claims. As a
result, claims against us could materially adversely affect our business.
WE ARE SUBJECT TO RISKS ASSOCIATED WITH COMPLETED AND POTENTIAL ACQUISITIONS.
We have made and may continue to make investments in complementary
companies, technologies, services or products if we find appropriate
opportunities. If we buy a company, we could have difficulty assimilating the
personnel and operations of the acquired company. If we make other types of
acquisitions, assimilating the technology, services or products into our
operations could be difficult. Acquisitions can disrupt our ongoing business,
distract management and other resources and make it difficult to maintain our
standards, controls and procedures. We may not succeed in overcoming these
risks or in any other problems we might encounter in connection with any future
acquisitions. We may be required to incur debt or issue equity securities to
pay for any future acquisitions. In addition, there can be no assurance that we
will be able to successfully integrate our recent acquisitions of Curasoft,
Netect and Entevo or that we will be able to integrate the products and
technology we acquired into our sales model or product offerings.
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WE MAY HAVE UNDETECTED SOFTWARE ERRORS.
Our software products are complex and may contain certain undetected
errors, particularly when first introduced or when new versions or enhancements
are released. We have previously discovered software errors in certain of our
new products after their introduction. We cannot be certain that, despite our
testing, such errors will not be found in current versions, new versions or
enhancements of our products after commencement of commercial shipments. Such
undetected errors could result in adverse publicity, loss of revenues, delay in
market acceptance or claims against us by customers, all of which could
materially adversely affect our business.
WE MAY BE SUBJECT TO PRODUCT LIABILITY CLAIMS.
Because our product design provides important network management services,
we may receive significant liability claims. Our agreements with customers
typically contain provisions intended to limit our exposure to liability claims.
These limitations may not, however, preclude all potential claims. Liability
claims could require us to spend significant time and money in litigation or to
pay significant damages. As a result, any such claims, whether or not
successful, could seriously damage our reputation and our business.
ANTI-TAKEOVER PROVISIONS IN OUR CHARTER MAY ADVERSELY AFFECT THE PRICE OF OUR
STOCK.
Incumbent management and our Board of Directors could use certain
provisions of our certificate of incorporation to make it more difficult for a
third party to acquire control of our company, even if the change in control
might be beneficial to our shareholders. This could discourage potential
takeover attempts and could adversely affect the market price of our common
stock.
OUR STOCK PRICE IS VOLATILE.
The market price of our common stock has fluctuated in the past and is
likely to fluctuate in the future. In addition, the securities markets have
experienced significant price and volume fluctuations. Investors may be unable
to resell their shares of our common stock at or above the offering price. In
the past, companies that have experienced volatility in the market price of
their stock have been the object of securities class action litigation. If we
were the object of securities class action litigation, it could result in
substantial costs and a diversion of management's attention and resources.
PROCEEDS
We will not receive any proceeds from the sale of the shares of common
stock offered by the selling shareholders pursuant to this prospectus.
SELLING SHAREHOLDERS
All of the shares of common stock offered by this prospectus were issued in
connection with our acquisition of Entevo Corporation, except for the 5,164
shares registered for sale by Imperial Bancorp, which shares are issuable on
exercise of a warrant originally exercisable for shares of Entevo that we
assumed in connection with that acquisition. We acquired Entevo on February 9,
2000, in a transaction accounted for as a pooling of interests. In connection
with that acquisition, we undertook the obligation to file the registration
statement of which this prospectus forms a part.
The following table shows the names of the selling shareholders and the
number of shares of our common stock that they may offer and sell under this
prospectus. All of the selling shareholders were shareholders of Entevo before
our acquisition of Entevo. The beneficial ownership shown below includes an
aggregate of 413,960 shares of our common stock held in an escrow account. We
may assert claims against this account until February 8, 2001 for matters
related to the acquisition. For purposes of this table, we have assumed that all
of the shares of our common stock held by the selling shareholders will be sold,
and that the selling shareholders will not hold any shares after this offering.
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SELLING SHAREHOLDER SHARES
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Abhyankar, Anand 162
Biddle, A.G. W. III 1,308
Bonsal, Frank 18,510
Boulder Ventures III Annex, L.P. 17,094
Boulder Ventures III L.P. 281,220
Brownstein, Neill 6,030
Charpentier, Pierre 504
Chaudhary, Amit 282
Ciabatoni, Linda 20,872
DB Alex. Brown 13,514
Draper International India L.P. 365,966
Faherty, Michael 2,412
FBR Technology Venture Partners L.P. 243,712
Heiser, Jay G. 352
Hudda, Aasheema 162,798
Hudda, Amir 304,494
Imperial Bancorp 5,164
Jain, Leena 188
Kulkarni, Shrirang 92
Limaye, Abhijit 312
Malloch, Theodore 2,412
Mellon Ventures II, L.P. 254,420
Moody, Gibbs R. 3,618
NEA Presidents Fund 5,806
NEA Ventures 1998, L.P. 646
New Enterprise Associates VII L.P. 459,408
Novak Biddle Venture Partners 64,488
Novak Biddle Venture Partners L.P. 304,580
Novak, Edmund R. Jr. 1,308
Oak Investment Partners VII, L.P. 454,442
Oak VII Affiliates Fund, L.P. 11,414
Palsule, Mahendra 292
Raste, Sunil 122
Rice Raymond 6,030
Rich, George 6,450
S1 Corporation 75,370
SAP America, Inc. 275,366
Schlessinger, Jeffrey 2,412
Smith, Michael L. 240
Sule, Manjiri 106
Symphony NB Investment, LLC 12,060
Malloch, Theodore 1,206
The Greenfield Family Limited Partnership 9,030
Van Wagoner Capital Management 433,994
Viswanath, Prashanth 346,700
Walker, Michael 4,908
WS Investment Company 3,618
Zarou, Paul A. 566
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TOTAL 4,185,998
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PLAN OF DISTRIBUTION
The shares of common stock offered pursuant to this prospectus are being
offered for the account of the selling shareholders.
The selling shareholders may sell these shares from time to time in the
over-the-counter market, on any stock exchange on which the common stock may be
listed at the time of sale, in private transactions or pursuant to underwriting
agreements at prices related to prices then prevailing involving payment of
customary commissions or discounts.
The shares of common stock offered hereby may be sold by any one or more
of the following methods:
o a block trade (which may involve crosses) in which the broker or dealer so
engaged will attempt to sell the securities as agent but may position and
resell a portion of the block as principal to facilitate the transaction;
o purchases by a broker or dealer as principal;
o ordinary brokerage transactions in which the broker solicits purchasers;
and
o privately negotiated transactions.
The selling shareholders and any broker-dealers that participate in the
distribution of the shares of common stock may be deemed to be "underwriters"
within the meaning of the Securities Act in connection with sales, and any
profit on the sale of shares of common stock by it and any fees and commissions
received by any such broker-dealers may be deemed to be underwriting discounts
and commissions. The shares of common stock also may be sold pursuant to Rule
144 of the Securities Act to the extent such sales may be made in compliance
with the requirements of Rule 144.
At the time a particular offering of the common stock is made hereunder,
to the extent required by law, a prospectus supplement will be distributed
which will set forth the amount of common stock being offered and the terms of
the offering, including the purchase price, the name or names of any dealers or
agents, the purchase price paid for the common stock purchased from the selling
shareholders and any items constituting compensation from the selling
shareholders.
On April 25, 2000, the last sales price of the common stock, as reported
by The Nasdaq Stock Market was $8 7/8 per share.
LEGAL MATTERS
Our legal counsel, Fulbright & Jaworski L.L.P., Houston, Texas, has passed
on certain legal matters with respect to the common stock.
EXPERTS
The financial statements incorporated in this Registration Statement
by reference to the Annual Report on Form 10-K for the year ended
December 31, 1999, have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority
of such firm as experts in auditing and accounting.
10
<PAGE> 13
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the Securities and Exchange Commission a registration
statement on Form S-3 under the Securities Act of 1933 with respect to the
shares. This prospectus, which is included in the registration statement, does
not contain all of the information in the registration statement. For further
information regarding BindView and our common stock, please see the
registration statement and our filings with the SEC, which you may read without
charge at the public reference facilities maintained by the SEC at Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, at the
regional offices of the Commission located at 7 World Trade Center, 13th Floor,
New York, New York 10048, at Citicorp Center, 500 West Madison Street, 14th
Floor, Chicago, Illinois 60661, at the offices of the National Association of
Securities Dealers, Inc., 1735 K Street, N.W., Washington, D.C. 20006 or
through the Commission's Web site at http:\\www.sec.gov.
We furnish holders of our common stock with annual reports containing
financial statements audited by our independent auditors in accordance with
generally accepted accounting principles following the end of each fiscal year.
We file reports and other information with the SEC pursuant to the reporting
requirements of the Securities Exchange Act of 1934.
Descriptions in this prospectus of documents are intended to be summaries
of the material, relevant portions of those documents, but may not be complete
descriptions of those documents. For complete copies of those documents, please
refer to the exhibits to the registration statement and other documents filed
by us with the SEC.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following, which we have filed with the SEC are incorporated herein by
reference:
o our Annual Report on Form 10-K for the fiscal year ended December 31,
1999;
o The description of Common Stock, no par value per share, contained in our
Registration Statement on Form S-1 (Reg. No. 333-66941), originally filed
with the Commission on November 6, 1998;
o our Current Report on Form 8-K dated February 9, 2000, filed with the
Commission on February 23, 2000, as amended by Amendment No. 1 to Form 8-K
on Form 8-K/A, filed with the Commission on April 21, 2000.
o our Current Report on Form 8-K dated April 3, 2000, filed with the
Commission on April 5, 2000.
All documents we file with the SEC pursuant to Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 after the date of this prospectus
but before the termination of the offering by this prospectus shall be deemed
to be incorporated herein by reference and to be a part hereof from the date of
the filing of those documents.
We will provide, without charge, to each person to whom a copy of this
prospectus has been delivered, upon written or oral request of such person, a
copy of any or all of the documents incorporated by reference herein (other
than certain exhibits to such documents not specifically incorporated by
reference). Requests for such copies should be directed to Investor Relations,
BindView Development Corporation, 5151 San Felipe, 22nd Floor, Houston, Texas
77056, telephone number 713/561-4000.
11
<PAGE> 14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution
We estimate the expenses of this offering to be:
<TABLE>
<CAPTION>
<S> <C>
Securities and Exchange Commission Registration Fee..................$ 8,875
Nasdaq Listing Fees.................................................. 17,500
Accounting Fees and Expenses......................................... 15,000
Legal Fees and Expenses.............................................. 20,000
Miscellaneous........................................................ 8,625
--------
TOTAL $ 70,000
========
</TABLE>
We are paying all of these expenses.
ITEM 15. 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 in 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, a director or officer may be indemnified as long as he had
no reasonable cause to believe his conduct was unlawful. 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, 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.
II-1
<PAGE> 15
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
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).
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
hereto).
24.1 Powers of Attorney (contained on page II-4 hereto).
</TABLE>
ITEM 17. UNDERTAKINGS.
We hereby undertake:
o To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
o to include any prospectus required by section 10(a)(3) of the Act of
1933;
o to reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement; and
o to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement; provided, however, that the undertakings set forth in the
previous two clauses do not apply if the information required to be
included in a post-effective amendment by those clauses is contained
in periodic reports filed with or furnished to the Securities and
Exchange Commission by the Company pursuant to section 13 or section
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
o That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a
new registration statement relating to the Securities offered therein, and
the offering of such Securities at that time shall be deemed to be the
initial bona fide offering thereof.
o 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.
o That, for purposes of determining any liability under the Securities Act
of 1933, each filing of the Company's annual report pursuant to section
13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the Securities offered
therein, and the offering of such Securities at that time shall be deemed
to be the initial bona fide offering thereof.
II-2
<PAGE> 16
o That, for purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of a registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrants pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act of 1933 shall be deemed to be part
of this registration statement as of the time it was declared effective.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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
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 Act and
will be governed by the final adjudication of such issue.
II-3
<PAGE> 17
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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on April 26, 2000.
BINDVIEW DEVELOPMENT CORPORATION
By: /s/ RICHARD P. GARDNER
-------------------------------------
RICHARD P. GARDNER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints each of Richard P. Gardner 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 indicated on April 26, 2000.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ ERIC J. PULASKI
- ------------------------------------------------------- Chairman of the Board and
ERIC J. PULASKI Chief Technology Officer
/s/ RICHARD P. GARDNER
- ------------------------------------------------------- Director, President, Chief Executive Officer
RICHARD P. GARDNER (principal executive officer)
/s/ SCOTT R. PLANTOWSKY
- ------------------------------------------------------- Director, Vice President and Chief Financial Officer
SCOTT R. PLANTOWSKY (principal financial and accounting officer)
- ------------------------------------------------------- Director
PETER L. BLOOM
- ------------------------------------------------------- Director
RICHARD A. HOSLEY II
- ------------------------------------------------------- Director
JOHN J. MOORES
/s/ LEELAND D. PUTTERMAN
- ------------------------------------------------------- Director
LEELAND D. PUTTERMAN
</TABLE>
II-4
<PAGE> 18
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
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).
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
hereto).
24.1 Powers of Attorney (contained on page II-4 hereto).
</TABLE>
<PAGE> 1
EXHIBIT 5.1
[LETTERHEAD OF FULBRIGHT & JAWORSKI L.L.P.]
April 26, 2000
BindView Development Corporation
5151 San Felipe, 22nd Floor
Houston, Texas 77056
Ladies and Gentlemen:
We have acted as counsel for BindView Development Corporation, a Texas
corporation (the "Company"), in connection with the proposed offering by certain
shareholders of the Company (the "Selling Shareholders") of an aggregate of (i)
4,180,834 shares (the "Acquisition Shares") of the Company's common stock, no
par value per share (the "Common Stock"), issued to former stockholders of
Entevo Corporation or to be issued to former stockholders of Entevo Corporation
upon the valid tender of certificates formerly representing shares of Entevo
Corporation in exchange for such shares and (ii) 5,164 shares of Common Stock
issuable upon exercise of an outstanding warrant (the "Warrant Shares", and
together with the Acquisition Shares, the "Shares").
We have examined, among other things, the Articles of Incorporation
and Bylaws of the Company, the corporate proceedings with respect to the
issuance of the Shares and the Registration Statement on Form S-3 to be filed
by the Company with the Securities and Exchange Commission for the registration
of the Shares under the Securities Act of 1933 (such Registration Statement, as
amended at the time when it becomes effective, being herein referred to as the
"Registration Statement").
Based on the foregoing, and having regard for such legal considerations
as we have deemed relevant, we are of the opinion that the Acquisition Shares
have been or, upon the valid tender of certificates formerly representing shares
of Entevo Corporation in exchange for such Shares, will be legally issued and
are or, upon the valid tender of certificates formerly representing shares of
Entevo Corporation in exchange for Shares, will be fully paid and non-assessable
shares of Common Stock, and that the Warrant Shares, upon the valid exercise of
the warrant underlying such Shares and the payment of the consideration required
thereunder, will be legally issued, fully paid and non-assessable shares of
Common Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the heading "Legal
Matters" in the prospectus forming a part of 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 PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-3 of our report dated January 26, 2000, except
as to Note 14, which is as of February 9, 2000 and except as to the pooling of
interests with Entevo Corporation which is as of March 29, 2000, relating to the
financial statements and financial statement schedule, which appears in BindView
Development Corporation's Annual Report on Form 10-K for the year ended December
31, 1999. We also consent to the reference to us under the heading "Experts" in
such Registration Statement.
/s/ PRICEWATERHOUSECOOPERS LLP
- ------------------------------
PricewaterhouseCoopers LLP
Houston, Texas
April 25, 2000
