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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM 10-K/A
AMENDMENT NO. 1
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 2002
COMMISSION FILE NUMBER 000-24677
BINDVIEW DEVELOPMENT CORPORATION
(Exact name of registrant as specified in its charter)
<Table>
TEXAS 76-0306721
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5151 SAN FELIPE, 25TH FLOOR, HOUSTON, TX 77056
(Address of principal executive offices) (Zip code)
</Table>
(713) 561-4000
(Registrant's telephone number, including area code)
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
NONE
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
<Table>
<Caption>
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH REGISTERED
------------------- -----------------------------------------
Common Stock, no par value per share NASDAQ National Market
</Table>
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports) and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
Indicate by check mark whether the registrant is an accelerated filer (as
defined in Exchange Act Rule 12b-2). Yes [ ] No [X]
The aggregate market value of the common stock held by non-affiliates of
the registrant on June 28, 2002 (assuming all officers and directors are
affiliates and based on the last sale price on the NASDAQ Stock Exchange as of
such date) was approximately $43 million.
The number of shares of the registrant's common stock, no par value per
share, outstanding as of March 24, 2003 was 46,574,500.
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EXPLANATORY NOTE
The registrant is filing this Amendment No. 1 to its Annual Report on Form
10-K filed with the Securities and Exchange Commission on March 31, 2003
("Amendment No. 1") solely for the purpose of providing information required by
certain items of Part III of Form 10-K. This Form 10-K/A does not reflect events
occurring after the filing of our original Form 10-K and no attempt has been
made to modify or update any disclosures other than those amended.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
BACKGROUNDS OF DIRECTORS
The members of BindView's board of directors are listed below, along with
their ages; positions and offices held with BindView; terms of office as
director; and periods of service as such:
<Table>
<Caption>
POSITION(S) WITH TERM TERM AS DIRECTOR; SUMMARY OF BUSINESS
DIRECTOR NAME AGE BINDVIEW EXPIRES EXPERIENCE IN PAST FIVE YEARS
- ------------- --- ---------------- ------- -------------------------------------
Eric J. Pulaski................ 39 Chairman of the 2004 Mr. Pulaski founded BindView in May
Board, President, 1990 and served as BindView's
and CEO chairman of the board, president and
chief executive officer from its
inception until January 2000, at
which time he became chairman of the
board and chief technology officer.
He returned as president and chief
executive officer in July 2001.
Peter T. Dameris............... 43 Director and 2004 Mr. Dameris has served as a director
member of Audit of BindView since August 2002. Mr.
Committee and Dameris is a private investor. He
Compensation served as executive vice president
Committee (since and chief operating officer of Quanta
Aug. 15, 2002) Services, a publicly traded
infrastructure services company, from
February 2001 until October 31, 2002.
From 1994 through September 2000, Mr.
Dameris was employed by Metamor
Worldwide Inc., a publicly traded IT
consulting company ("Metamor"), where
he held a variety of positions
including chairman of the board and
chief executive officer, executive
vice president, senior vice president
of strategy and development, and
general counsel.
Richard A. Hosley II........... 58 Director, member 2005 Mr. Hosley has served as a director
of Compensation of BindView since January 1998. Since
Committee, and October 1990, Mr. Hosley has been a
former chair of private investor. From 1980 to 1990,
Audit Committee Mr. Hosley was employed by BMC, where
(until Jan. 27, he held a variety of positions
2003) including vice president of sales and
marketing, president, chief executive
officer and vice chairman.
</Table>
1
<Table>
<Caption>
POSITION(S) WITH TERM TERM AS DIRECTOR; SUMMARY OF BUSINESS
DIRECTOR NAME AGE BINDVIEW EXPIRES EXPERIENCE IN PAST FIVE YEARS
- ------------- --- ---------------- ------- -------------------------------------
Edward L. Pierce............... 46 Director, Senior 2003 Mr. Pierce has served as BindView's
Vice President, senior vice president and chief
and CFO financial officer since May 1, 2001,
and as a director since July 26,
2001. Before joining BindView, Mr.
Pierce was employed by Metamor from
November 1994 until January 2001,
most recently as executive vice
president and chief financial
officer. He served as a director of
Metamor from October 1999 until
Metamor's acquisition by PSINet Inc.
in June 2000.
Robert D. Repass............... 42 Director and chair 2005 Mr. Repass has served as a director
of Audit Committee of BindView since January 2003. Since
(since Jan. 27, April 2002, Mr. Repass has been vice-
2003) president and chief financial officer
of Motion Computing, Inc. in Austin,
Texas. From March 2000 to December
2001, Mr. Repass was a partner with
TL Ventures, a venture capital
investment firm with focus on funding
early stage technology companies.
From 1997 to March 2000, Mr. Repass
was a partner at
PricewaterhouseCoopers LLP where he
served as the office managing partner
for the Austin practice. Mr. Repass
serves on the board of directors and
as chairman of the audit committee of
Multimedia Games, Inc.
Armand S. Shapiro.............. 61 Director, member 2003 Mr. Shapiro has served as a director
of Audit of BindView since October 2001. Mr.
Committee, and Shapiro has been the chairman of
chair of MessagePro, Inc., a Houston-based
Compensation telephone answering service company,
Committee since February 2002, where he served
as chief executive officer from
February 2002 until January 2003. Mr.
Shapiro is also the chairman and
chief executive officer of Garden
Ridge Corporation, where he has
served as chairman since June 1990
and as chief executive officer since
March 2003; he previously served as
chief executive officer from June
1990 to June 1999. Mr. Shapiro serves
as a senior advisor to Summit Capital
Group, LLC, a private equity
investment firm, and as a director of
SSP Holdings, Inc.
</Table>
2
BACKGROUNDS OF EXECUTIVE OFFICERS AND OTHER MEMBERS OF SENIOR MANAGEMENT
BindView's executive officers and certain other members of the company's
senior management are listed below, along with their ages; positions and offices
held with BindView; terms of office; and periods of service as such. All listed
officers serve until their death, resignation, or removal from office.
<Table>
<Caption>
TERM AS OFFICER; SUMMARY OF BUSINESS
OFFICER NAME AGE POSITION(S) WITH BINDVIEW EXPERIENCE IN PAST FIVE YEARS
- ------------ --- ------------------------- ------------------------------------
Eric J. Pulaski................ 39 Chairman, President, and See above under the heading "Backgrounds
Chief Executive Officer of Directors."
Edward L. Pierce............... 46 Senior Vice President and See above under the heading "Backgrounds
Chief Financial Officer of Directors."
Ronald E. Rosenthal............ 51 Senior Vice President of Mr. Rosenthal has been BindView's Senior
Worldwide Marketing Vice President of Worldwide Marketing
since November 2002. From 1997 to 2000,
he served as vice president/marketing
for Harbinger Corporation in Atlanta
before its acquisition by Peregrine
Systems, where he continued to serve as
vice president/marketing on multiple
assignments through 2002. From 1991 to
1996, Mr. Rosenthal was vice
president/marketing for Scientific
Software, Inc., in Atlanta.
Jeffrey E. Margolis[1]......... 40 Senior Vice President of Mr. Margolis joined BindView in March
Business Development 1998. From October 1996 until joining
BindView, he worked in investment and
merchant banking as a vice president of
GulfStar Group, Inc., an affiliate of
International Bancshares Corporation. He
is the brother of Gary S. Margolis.
Gary S. Margolis............... 37 Senior Vice President of Mr. Margolis has worked in software
Research and Development development at BindView since 1992; he
and Chief Technology became Senior Vice President of Research
Officer and Development and Chief Technology
officer in July 2001. He is the brother
of Jeffrey E. Margolis.
Kevin P. Cohn.................. 34 Vice President, Corporate Mr. Cohn has been BindView's Vice
Controller, and Chief President and Corporate Controller since
Accounting Officer joining the company in May 2001; he was
elected Chief Accounting Officer in July
2001. From December 1997 until January
2001 he was employed by Metamor, most
recently as Vice President, Corporate
Controller, and Chief Accounting
Officer. Before that, Mr. Cohn was
employed by Ernst & Young LLP where he
served most recently as an Audit
Manager.
</Table>
3
<Table>
<Caption>
TERM AS OFFICER; SUMMARY OF BUSINESS
OFFICER NAME AGE POSITION(S) WITH BINDVIEW EXPERIENCE IN PAST FIVE YEARS
- ------------ --- ------------------------- ------------------------------------
David S. Flame................. 40 Vice President, Americas Mr. Flame has been BindView's Vice
Sales and Field President, Americas Sales and Field
Operations Operations since December 2002. From
February 2002 to June 2002 he was
employed by Alphablox Corporation as
senior vice president -- worldwide sales
and services. From May 1995 to October
2001 he was employed by BMC Software,
Inc., most recently as vice
president-sales for the Americas
Northeast and as vice president-sales
and operations for Latin America.
David E. Lloyd................. 55 Vice President, Mr. Lloyd has been BindView's Vice
International Sales and President of International Sales and
Field Operations Field Operations since November 2002.
From 1996 to 2002 he was employed by
Visual Numerics Inc., a privately held
company based in Houston, in various
executive capacities.
D. C. Toedt III [1]............ 48 Vice President, General From 1983 until joining BindView in
Counsel, and Secretary October 1999, Mr. Toedt was an
intellectual-property attorney at
Arnold, White & Durkee, P.C. (now Howrey
Simon Arnold & White LLP), first as an
associate and later as a shareholder and
member of the management committee.
</Table>
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Notes:
[1] Not an "executive officer" as defined in applicable SEC regulations.
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Securities Exchange Act of 1934 requires BindView's
officers, directors and persons who own more than 10% of a registered class of
BindView's equity securities to file reports of ownership and changes in
ownership with the Securities and Exchange Commission. Officers, directors and
greater than 10% shareholders are required by the regulation to furnish BindView
with copies of all Section 16(a) reports they file.
Based on a review of Forms 3 and 4 and amendments thereto furnished to
BindView during the fiscal year ended December 31, 2002, BindView believes that
all such forms were timely filed during such fiscal year, except that Messrs.
Lloyd and Rosenthal were late in filing their respective Form 3 reports when
they joined the Company; Mr. Rosenthal was late in filing a Form 4 report of his
initial option grant; and Mr. Dameris was late in filing a Form 3 report when he
became a member of the Board of Directors.
ITEM 11. EXECUTIVE COMPENSATION
SUMMARY OF EXECUTIVE COMPENSATION
The following table summarizes compensation information for the "Named
Executive Officers," namely (i) each person serving as BindView's Chief
Executive Officer or acting in a similar capacity during the fiscal year ended
December 31, 2002; (ii) BindView's four most highly compensated executive
officers other than the CEO who were serving as executive officers at the end of
such fiscal year, excluding any executive officer, other than the CEO, whose
total annual salary and bonus did not exceed $100,000 for such fiscal year; and
4
(iii) up to two additional individuals for whom disclosure would have been
provided under clause (ii) but for the fact that the individual was not serving
as an executive officer of BindView at the end of such fiscal year.
<Table>
<Caption>
LONG-TERM COMPENSATION
--------------------------
ANNUAL COMPENSATION RESTRICTED SECURITIES
------------------- STOCK UNDERLYING ALL OTHER
NAME AND PRINCIPAL POSITION YEAR SALARY BONUS AWARDS OPTIONS(#)(1) COMPENSATION(2)
- --------------------------- ---- -------- -------- ---------- ------------- ---------------
Eric J. Pulaski(3).............. 2002 $228,125 $162,500 -- 100,000 $ 5,500
Chairman & President & 2001 81,250 -- -- -- 2,438
Chief Executive Officer 2000 150,000 -- -- -- 5,250
Edward L. Pierce(4)............. 2002 200,000 130,000 -- 130,000 5,500
Senior Vice President & 2001 133,333 -- -- -- 3,000
Chief Financial Officer
Gary S. Margolis(5)............. 2002 165,570 89,232 -- 191,250 5,500
Senior Vice President of 2001 137,280 2,094 -- 50,000 4,181
Research & Development & 2000 133,320 6,250 -- 4,173
Chief Technology Officer
Kevin P. Cohn................... 2002 130,625 40,625 -- 50,000 5,138
Vice President, Corporate Con- 2001 73,397 -- -- 100,000 1,875
troller & Chief Accounting
Officer
William D. Miller(6)............ 2002 115,353 115,869 -- 75,000 6,000
former Senior Vice President & 2001 191,667 46,936 -- 200,000 5,250
Chief Operating Officer 2000 102,993 104,464 -- 400,000 35,000
Kenneth D. Naumann(7)........... 2002 196,009 50,000 -- 100,000 5,500
former Vice President of 2001 209,964 -- -- 100,000 5,250
Worldwide Sales 2000 238,537 43,007 -- -- 5,250
</Table>
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(1) Gives effect to the one-for-one stock dividend paid by BindView on February
17, 2000.
(2) "All other compensation" includes BindView's contributions to the BindView
Development Corporation 401(k) Profit Sharing Plan. See also the
supplemental notes for certain specific executives, below.
(3) Mr. Pulaski served as President and Chief Executive Officer until January
2000 and as Chairman and Chief Technology Officer from then until July 1,
2001, at which time he resumed the positions of President and Chief
Executive Officer upon Mr. Gardner's resignation. Mr. Pulaski voluntarily
took no salary or bonus in the second half of 2001.
(4) In May of 2001, the Company, under the terms of a restricted stock
agreement, issued 400,000 shares of restricted common stock to Mr. Pierce at
$2.61 per share (its fair market value as of that date) in exchange for a
full recourse, interest-bearing promissory note in the amount of $1,044,000.
The restricted common stock vests over a four-year period from the date of
issuance. At the same time, the Company also entered into an employment
agreement with Mr. Pierce which, among other things, required the Company to
pay Mr. Pierce a guaranteed signing bonus in installments beginning with the
first vesting date of the restricted common stock in April 2002, in amounts
corresponding to the principal and unpaid interest associated with the price
of the vesting shares. At December 31, 2001, the May agreements were
rescinded and new agreements were entered into reflecting issuance of
400,000 shares to Mr. Pierce at $1.97 per share (its fair market value as of
that date) in exchange for a full recourse, interest-bearing promissory note
in the amount of $788,000, and lowering of the guaranteed signing bonus in
proportion to the reduction in proceeds to the Company from the stock
issuance. In 2002, pursuant to his employment agreement, Mr. Pierce elected
to defer payment of the signing-bonus installments that came due during that
year. See also the discussion below under the heading "Employment Agreements
and Change of Control Agreements of Named Executive Officers."
(5) Gary S. Margolis became chief technology officer in July 2001.
5
(6) Mr. Miller resigned effective in July 2002. For 2000, "all other
compensation" for Mr. Miller includes payments made by BindView on his
behalf in connection with his relocating to Houston, Texas, home of
BindView's corporate headquarters.
(7) Mr. Naumann resigned effective January 1, 2003.
OPTION GRANTS FOR FISCAL YEAR ENDED DECEMBER 31, 2002
This table shows information concerning individual grants of stock options
made during the year ended December 31, 2002, to each of the Named Executive
Officers.
<Table>
<Caption>
POTENTIAL REALIZABLE
VALUE AT ASSUMED
ANNUAL RATES OF
PERCENT OF STOCK PRICE
SHARES OF TOTAL OPTIONS APPRECIATION FOR
COMMON STOCK GRANTED TO EXERCISE OPTION TERM(1)
UNDERLYING EMPLOYEES PRICE PER ---------------------
NAME OPTIONS(#) DURING YEAR SHARE($) EXPIRATION 5%($) 10%($)
- ---- ------------ ------------- --------- ---------- --------- ---------
Eric J. Pulaski........... 100,000 3.2% 1.545 4/2012 97,164 246,233
Edward L. Pierce.......... 130,000 4.1% 1.545 4/2012 126,313 320,103
Gary S. Margolis.......... 130,000 4.1% 1.545 4/2012 126,313 320,103
Gary S. Margolis.......... 61,250 1.9% 1.01 11/2012 38,905 98,593
Kevin P. Cohn............. 50,000 1.6% 1.545 4/2012 48,582 123,116
William D. Miller(2)...... 75,000 2.4% 1.545 7/2003 72,873 184,675
Kenneth D. Naumann(3)..... 100,000 3.2% 1.53 4/2012 96,220 243,842
</Table>
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(1) The potential realizable value of the options is based on an assumed
appreciation in the price of the common stock at a compounded annual rate of
5% or 10% from the date the option was granted until the date the option
expires. The 5% and 10% appreciation rates are set forth in the Securities
and Exchange Commission's regulations. BindView does not represent that the
common stock will appreciate at these assumed rates.
(2) Mr. Miller resigned in July 2002; all but one of his options expired 90 days
thereafter pursuant to the terms of the applicable option plan. The
remaining option, for 75,000 shares, expires July 15, 2003 pursuant to his
separation agreement with BindView. See also the discussion of Mr. Miller's
separation agreement under the heading "Employment Agreements and Change of
Control Agreements of Named Executive Officers."
(3) Mr. Naumann resigned effective January 1, 2003; his options consequently
expired 90 days later.
OPTION EXERCISES AND FISCAL YEAR END OPTION VALUES
This table shows all stock options exercised by the Named Executive
Officers during the fiscal year ended December 31, 2002, and the number and
value of options each held at fiscal year end.
<Table>
<Caption>
NUMBER OF SECURITIES VALUE OF UNEXERCISED
UNDERLYING UNEXERCISED "IN-THE-MONEY"
OPTIONS AT OPTIONS AT
SHARES DECEMBER 31, 2002(#) DECEMBER 31, 2002($)(1)
ACQUIRED ON VALUE --------------------------- ---------------------------
EXERCISE(#) REALIZED($) EXERCISABLE UNEXERCISABLE EXERCISABLE UNEXERCISABLE
----------- ----------- ----------- ------------- ----------- -------------
Eric J. Pulaski.......... -- -- -- 100,000 -- --
Kevin P. Cohn............ -- -- 37,500 112,500 -- --
Gary S. Margolis......... -- -- 178,750 242,500 -- 26,950
William D. Miller........ -- -- 75,000 -- -- --
Kenneth D. Naumann....... -- -- 215,841 237,783 -- --
Edward L. Pierce......... -- -- -- 130,000 -- --
</Table>
- ---------------
(1) The value of the unexercised "in-the-money" options equals the difference
between the option exercise price and the closing price of BindView stock at
fiscal year end, multiplied by the number of shares underlying the options.
The closing price of BindView stock on December 31, 2002, as reported on the
Nasdaq Stock Market, was $1.45.
6
COMPENSATION OF DIRECTORS
We reimburse our directors for out-of-pocket expenses incurred in attending
Board meetings. In addition, non-employee directors receive $2,000 per meeting
for attending Board meetings in person and $1,000 per meeting for attending by
telephone, as well as $750 per meeting for attending committee meetings in
person and $500 per meeting for attending by telephone.
Each of our non-employee directors received initial grants of options to
acquire our common stock upon joining the Board. In 2002, our non-employee
directors who had not joined the Board in 2002 were awarded an annual grant to
acquire our common stock. All such grants were made under our 1998 Non-Employee
Directors Stock Option Plan, in amounts and exercise prices as follows:
<Table>
<Caption>
EXERCISE
NAME NO. OPTIONED SHARES PRICE
- ---- ----------------------- --------
Peter T. Dameris...................................... Initial grant: 100,000 $0.95
Richard A.. Hosley II................................. Initial grant: 100,000 $1.92
Nov. 2002: 25,000 $0.99
Robert D. Repass...................................... Initial grant: 100,000 $1.34
Armand S. Shapiro..................................... Initial grant: 100,000 $0.99
Nov. 2002: 25,000 $0.99
</Table>
These options vest in installments over four years, except that they vest
in full if BindView is subject to a change in control (as defined in that plan)
or if the optionee dies or becomes disabled. The options expire ten years from
the date of grant or, if earlier, 90 days after the optionee ceases to be a
director or 12 months after the optionee's death.
EMPLOYMENT AGREEMENTS AND CHANGE OF CONTROL AGREEMENTS OF NAMED EXECUTIVE
OFFICERS
Of the Named Executive Officers, we have or had employment agreements and
change-of-control agreements with Kevin P. Cohn, Gary S. Margolis, William D.
Miller, Eric J. Pulaski, and Edward L. Pierce.
Under the respective employment agreements between the aforementioned
individuals and BindView, each such individual is entitled to receive (i) a base
salary, plus (ii) contingent incentive bonus compensation based on achievement
of certain management objectives, including revenue and profitability targets,
in accordance with a plan approved by the Compensation Committee of the Board.
The company may terminate such an individual's employment with or without cause,
and the individual may resign for any reason, in either case by written notice.
The employment agreements provide for different outcomes depending upon the
circumstances of the termination of employment or resignation. If the
individual's employment is terminated by BindView other than for cause or
disability or if the individual resigns for good reason (as defined in the
agreement), then the individual is entitled to a severance period of one year,
during which he continues to receive his base salary along with medical/health
benefits.
Under the respective change-of-control agreements between the
aforementioned individuals (except Mr. Miller) and BindView, each individual's
options will become fully vested in the event of a change of control (as defined
in the agreement), and the individual will be entitled to exercise any vested,
unexercised options for a period of 18 months after the date of termination of
employment. If, in connection with a change of control (as defined in the
agreement), the individual's employment is terminated other than for cause or he
resigns for good reason (as defined in the agreement), then the individual is
entitled to (i) all severance benefits provided in the employment agreement;
(ii) a special severance payment in an amount equal to the individual's annual
base salary; and (iii) continuation of insurance-related benefits for an
additional six months after the end of the time that such benefits are required
to be provided under the employment agreement. If any payment by BindView to the
individual would be subject to the excise tax imposed by Section 4999 of the
Internal Revenue Code or any interest or penalties with respect to such excise
tax, then the individual is entitled to receive a gross-up payment, in an amount
such that, after payment by the individual of all taxes (including any interest
or penalties imposed with respect to such taxes), including any
7
excise tax imposed upon the gross-up payment, the individual retains an amount
of the gross-up payment equal to the excise tax imposed upon the payments.
Mr. Cohn's employment agreement provides for a base salary of $132,500 per
year. Mr. Margolis' employment agreement provides for a base salary of $175,000
per year. Mr. Miller's employment agreement provided for an annual base salary
of $150,000 per year. Mr. Pulaski's employment agreement provides for a base
salary of $225,000 per year.
Mr. Naumann's separation agreement provides for Mr. Naumann to continue to
receive his base salary of $175,000 through December 2003 and to receive a bonus
payment for 2002 in accordance with the 2002 executive bonus plan approved by
the Compensation Committee as described above. (Such bonus payment was made
January 31, 2003 in the amount of $32,812.50.)
Mr. Miller's separation agreement with BindView, dated July 15, 2002,
provides (i) for 100% vesting of an option to purchase 75,000 shares of
BindView's common stock at an exercise price of $1.545 per share, granted to Mr.
Miller in April 2002; and (ii) for Mr. Miller to be able to exercise that option
through July 15, 2003.
Mr. Pierce's employment agreement provides for (a) an annual base salary of
$200,000; (b) a guaranteed signing bonus payable in installments, beginning in
April 2002, corresponding to the vesting dates of his 400,000-share restricted
stock award (see also the discussion of the associated promissory note in the
notes to the table under the heading "Summary of Executive Compensation"), but
deferrable at his option; (c) contingent incentive bonus compensation as
described above; and (d) a stock option grant no later than December 31, 2002.
(The stock option grant made pursuant to clause (d) was for 130,000 shares in
accordance with the criteria set forth in Mr. Pierce's employment agreement.) If
Mr. Pierce's employment is terminated by BindView other than for cause or
disability, or if he resigns for good reason (as defined in the agreement), then
he is entitled, in addition to the severance benefits described above for the
other Named Executive Officers, to a series of quarterly bonus payments equal to
an annual bonus of $200,000 (which he may opt to take in a present-value lump
sum discounted at 8% per annum interest). Mr. Pierce's restricted-stock
agreement with the Company requires him, before selling any of his vested
restricted shares, to make certain payments on the principal and interest of his
promissory note to the Company in payment of the purchase price of such shares,
in an amount determined by a schedule in the restricted-stock agreement.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
No member of the Compensation Committee was an officer or employee of
BindView or any of its subsidiaries during fiscal 2002. No executive officer of
BindView served during fiscal 2002 as a director or as a member of the
Compensation Committee of another entity, one of whose executive officers served
as a director or on the Compensation Committee of the Company.
COMPENSATION COMMITTEE REPORT ON EXECUTIVE COMPENSATION
The Compensation Committee of the Board, which is composed of non-employee
directors, has furnished the following report on executive compensation.
BindView's executive compensation program is designed to attract, motivate
and retain talented management personnel and to reward management for the
company's successful financial performance and for increasing shareholder value.
BindView's compensation program consists of three principal elements: base
salary, performance bonus and stock options. Together these elements comprise
total compensation value. The Compensation Committee believes that the total
compensation program for executives of BindView is competitive with the
compensation programs provided by other comparable companies.
Base Salary: The Compensation Committee periodically reviews base salaries
of executive officers, including the executive officers named in the "Summary of
Executive Compensation" discussion below. The factors considered in setting
salaries include (but are not necessarily limited to) salaries paid to persons
holding comparably-responsible positions at other similarly-situated companies;
the applicable cost of living; the Company's overall financial performance; the
individual's past performance and potential with the
8
Company; and input from the chief executive officer. The consideration of
additional factors and the weight given to any particular factor are within the
discretion of the Compensation Committee.
CEO Compensation: The base salary, bonus, and option grant for Eric J.
Pulaski in 2002 were based on his position, responsibility, level of experience,
and on his individual performance and BindView's performance. In April 2002, Mr.
Pulaski was granted an option, under BindView's 1998 Omnibus Incentive Plan, to
purchase 100,000 shares of BindView's common stock at its fair market value on
the date of the grant ($1.545 per share); this option vest over four years.
Annual Performance Bonuses: Total compensation for executive officers also
includes cash bonuses in accordance with BindView's senior-executive bonus plan,
with the on-target amount for each incumbent executive officer being specified
in the executive officer's employment agreement with BindView, based on the same
factors as described above for executive-officer salaries. Only partial cash
bonus awards were paid in 2002, based on BindView's financial performance for
the fiscal year ended December 31, 2001.
Stock Options: Total compensation for executives also includes long term
incentives in the form of stock options, which are generally provided through
initial stock option grants at the date of hire and periodic additional stock
option grants. Stock options are instrumental in promoting the alignment of
long-term interests between BindView's management and shareholders because an
option holder realizes gains only if the stock price increases over the fair
market value at the date of grant. In determining the amount of option grants,
we evaluate the position of the employee, responsibility of the employee and
overall compensation package. All options are granted at a strike price of at
least fair market value at the date of grant. The long-term value realized by
management through option exercises is directly linked to the enhancement of
shareholder value.
Applicable Tax Code Provision. The compensation committee has reviewed the
potential consequences for BindView of Section 162(m) of the Internal Revenue
Code, which limits the tax deduction a company can claim for annual compensation
in excess of $1 million to certain executives. This limit did not affect
BindView in 2002. While the Company strives to ensure that it will be able to
deduct the compensation it pays, if compliance with Section 162(m) conflicts
with the Company's compensation philosophy, or with what is believed to be in
the best interests of the Company and its stockholders, the Company may conclude
that paying non-deductible compensation is more consistent with that philosophy
and in the Company's and stockholders' best interests.
COMPENSATION COMMITTEE:
Peter T. Dameris
Richard A. Hosley II
Armand S. Shapiro (Chair)
9
COMMON STOCK PERFORMANCE COMPARISONS
The following performance graph compares the performance of BindView's
common stock to the Nasdaq Stock Market (U.S.) Index and the Standard & Poor's
Computers (Software & Services) Index. The graph assumes an investment in
BindView's common stock and each index of $100 at June 30, 1998, in the case of
the indexes and at July 24, 1998, the effective date of BindView's initial
public offering, in the case of BindView stock, and that all dividends, if any,
were reinvested.
This graph is based on historical data and not necessarily indicative of
future performance. This graph shall not be deemed "soliciting material" nor
"filed" with the Securities and Exchange Commission nor subject to the
Regulations of 14A or 14C under the Exchange Act or subject to the liabilities
of Section 18 under the Exchange Act.
COMPARISON OF 5 YEAR CUMULATIVE TOTAL RETURN*
AMONG BINDVIEW DEVELOPMENT CORPORATION,
THE NASDAQ STOCK MARKET (U.S.) INDEX
AND THE S & P INTERNET SOFTWARE & SERVICES INDEX
(PERFORMANCE GRAPH)
<Table>
<Caption>
- -----------------------------------------------------------------------------------------------------------
7/24/98 12/98 12/99 12/00 12/01 12/02
- -----------------------------------------------------------------------------------------------------------
BindView Development Corporation 100 275.00 496.88 188.12 40.20 29.00
Nasdaq Stock Market (U.S.) 100 117.24 217.44 131.20 104.08 71.96
S & P Internet Software & Services 100 100.00 189.91 61.26 42.17 38.87
</Table>
* $100 invested on 7/24/98 in stock or on 6/30/98 in index-including
reinvestment of dividends. Fiscal year ending December 31.
10
EQUITY COMPENSATION PLAN INFORMATION
The following table sets forth information as of December 31, 2002, with
respect to the Company's compensation plans under which equity securities are
authorized for issuance:
<Table>
<Caption>
(C)
(A) NUMBER OF SECURITIES
NUMBER OF SECURITIES (B) REMAINING AVAILABLE FOR
TO BE ISSUED UPON WEIGHTED-AVERAGE FUTURE ISSUANCE UNDER
EXERCISE OF EXERCISE PRICE OF EQUITY COMPENSATION PLANS
OUTSTANDING OPTIONS, OUTSTANDING OPTIONS, (EXCLUDING SECURITIES
PLAN CATEGORY WARRANTS AND RIGHTS WARRANTS AND RIGHTS REFLECTED IN COLUMN(A))(3)
- ------------- -------------------- -------------------- --------------------------
Equity compensation plans
approved by security
holders(1)..................... 2,175,736 $5.36 5,010,560
Equity compensation plans not
approved by security
holders(2)..................... 5,367,524 2.32 3,155,049
--------- ----- ---------
Total............................ 7,543,260 $3.20 8,165,609
========= ===== =========
</Table>
- ---------------
Notes:
- ---------------
(1) BindView's shareholder-approved stock-option plans (including plans approved
by the shareholders prior to the Company's initial public offering in 1998)
are the 1998 Omnibus Incentive Plan; the 1997 Incentive Plan; the 1996
Incentive Stock Option Plan, and the 1996 Stock Option Plan. See note 9 to
the financial statements accompanying the annual report on Form 10-K filed
March 31, 2003, for additional details about the number of shares reserved
for issuance; the number of options outstanding and available for issuance;
and the number and weighted-average exercise price of the options
exercisable, under the respective plans at December 31, 2002. These plans
generally provide for the issuance to employees of options to purchase
BindView's common stock, no par value ("Common Stock") when approved by the
Board of Directors or a committee thereof; for vesting of the options over a
period of time; and for forfeiture of unexercised options if the optionee
resigns or the optionee's employment is terminated.
(2) BindView's non-shareholder approved stock-option plans are the 1997
Nonqualified Stock Option Plan; the 1998 Non-Employee Director Stock Option
Plan; the 2000 Indian Stock Option Plan; the 2000 Employee Incentive Plan;
the [Netect] 1998 International Employee Stock Option Plan; the 1997 Entevo
Stock Plan, and the 1998 [Entevo] Indian Stock Option Plan. See note 9 to
the financial statements accompanying the annual report on Form 10-K filed
March 31, 2003, for additional details about the number of shares reserved
for issuance; the number of options outstanding and available for issuance;
and the number and weighted-average exercise price of the options
exercisable, under the respective plans at December 31, 2002. In connection
with the respective mergers of Netect and Entevo with the Company, the
options previously granted under the plans identified above as Netect or
Entevo plans were exchanged for options to purchase the Company's common
stock using an exchange ratio, which is reflected in the amounts listed in
the financial statements. Certain local regulatory restrictions apply to the
2000 Indian Stock Option Plan. The plans not identified above as Netect or
Entevo plans generally provide for the issuance to employees (or, in the
case of the Non-Employee Director Stock Option Plan, to non-employee members
of the Board of Directors) of options to purchase BindView's common stock,
no par value ("Common Stock") when approved by the Board of Directors or a
committee thereof; for vesting of the options over a period of time; and for
forfeiture of unexercised options if the optionee resigns or the optionee's
employment is terminated.
(3) The Company also maintains an Employee Stock Purchase Plan described in note
10 to the financial statements accompanying the Annual Report on Form 10-K
filed March 31, 2003. The Company originally reserved 1,000,000 shares for
issuance under this plan. As of December 31, 2002, there are 218,172 shares
remaining available for issuance.
11
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth information as of April 3, 2003 with respect
to (a) persons known to us to be beneficial owners of more than five percent
(5%) of the outstanding shares of BindView's common stock, (b) the Named
Executive Officers identified in the Summary of Executive Compensation appearing
elsewhere in this Amendment No. 1 and our directors and (c) all of our executive
officers and directors as a group. Unless otherwise noted, we believe that all
persons named in this table have sole voting and investment power with respect
to all shares of common stock beneficially owned by them.
<Table>
<Caption>
BENEFICIAL OWNER SHARES(1) PERCENTAGE(1)
- ---------------- --------- -------------
Kevin P. Cohn(2)............................................ 56,250 *
Peter T. Dameris............................................ -- *
Richard A. Hosley II(3)..................................... 100,000 *
Gary S. Margolis(4)......................................... 276,822 *
William D. Miller(5)........................................ 86,898 *
Kenneth D. Naumann(6)....................................... -- *
Edward L. Pierce(7)......................................... 255,190 *
Eric J. Pulaski(8).......................................... 8,948,200 19.21%
5151 San Felipe, 25th Floor
Houston, TX 77056
Robert D. Repass............................................ -- *
Armand S. Shapiro(9)........................................ 37,500 *
All executive officers and directors as a group(10)......... 9,760,860 20.96%
Third Point Management Company LLC/Daniel S. Loeb(11)....... 2,590,300 5.6%
360 Madison Avenue, 24th Floor,
New York, NY 10017
</Table>
- ---------------
* Less than 1%
Notes:
(1) In accordance with the guidelines of the Securities and Exchange
Commission, each beneficial owner's percentage ownership is determined by
assuming that options held by such person and exercisable within 60 days
have been exercised. The numbers of shares and options held by persons
listed because of their status as Named Executive Officers, executive
officers, or directors are based on our option-grant records; on public
filings such as Form 3 and Form 4 filings; and (in the case of current
Named Executive Officers and directors) on information supplied by the
named persons.
(2) Mr. Cohn is a Named Executive Officer of the Company. His listed holdings
include 56,250 shares of common stock that would be issued if he were to
exercise outstanding vested options.
(3) Mr. Hosley is a director of the Company. His listed holdings include
100,000 shares of common stock that would be issued if he were to exercise
outstanding vested options.
(4) Gary Margolis is a Named Executive Officer of the Company. His listed
holdings include 222,500 shares of common stock that would be issued if he
were to exercise outstanding vested options.
(5) Mr. Miller is a Named Executive Officer of the Company who resigned
effective in July 2002. The information in the table above concerning Mr.
Miller's holdings is based on BindView's records of employee stock
purchases prior to his resignation and 75,000 shares of common stock that
would be issued if he were to exercise his outstanding vested options.
(6) Mr. Naumann is a Named Executive Officer of the Company who resigned
effective January 1, 2003.
(7) Mr. Pierce is a director and a Named Executive Officer of the Company. His
listed holdings include 200,000 shares of restricted common stock that will
vest within 60 days and 32,500 shares of common stock that would be issued
if he were to exercise outstanding vested options.
12
(8) Mr. Pulaski is a director and a Named Executive Officer of the Company. His
listed holdings include 25,000 shares of common stock that would be issued
if he were to exercise outstanding vested options.
(9) Mr. Shapiro is a director of the Company. His listed holdings include
37,500 shares of common stock that would be issued if he were to exercise
outstanding vested options.
(10) See the above notes to this table. Includes an aggregate of 548,750 shares
of common stock that would be issued if option holders were to exercise
outstanding vested stock options.
(11) Information for Third Point Management Company LLC ("Third Point") and
Daniel S. Loeb ("Loeb") is based on a Schedule 13D filed on February 13,
2003 which lists Third Point and Loeb as Reporting Persons and lists their
address as 360 Madison Ave, 24th Floor, New York, New York 10017.
ITEM 13. CERTAIN RELATIONSHIPS AND TRANSACTIONS
Mr. Pierce is indebted to the Company in the amount of $788,000 plus
accrued interest, in the form of a full-recourse promissory note dated December
31, 2001, at 3% interest, due on or before April 30, 2005. The promissory note
is in payment, at fair market value, of 400,000 shares of the Company's
restricted common stock granted to Mr. Pierce on December 31, 2001. Payment of
the note is secured by a security interest in such shares. See also the note
concerning Mr. Pierce's compensation following the table under the heading
"Summary of Executive Compensation" as well as the discussion under the heading
"Employment Agreements and Change of Control Agreements of Named Executive
Officers."
PART IV
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) Financial statements: See the financial statements beginning on page 30
of the report on Form 10-K filed on March 31, 2003.
(b) Reports on Form 8-K: See the list of reports on Form 8-K in the report
on Form 10-K filed March 31, 2003.
(c) Exhibits: See the Exhibit Index at the end of this Amendment No. 1.
13
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
BINDVIEW DEVELOPMENT CORPORATION
/s/ ERIC J. PULASKI
--------------------------------------
Eric J. Pulaski
Chairman of the Board,
Chief Executive Officer and President
(Principal Executive Officer)
April 30, 2003
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated below.
<Table>
<Caption>
SIGNATURE TITLE DATE
--------- ----- ----
/s/ ERIC J. PULASKI Chairman of the Board, April 30, 2003
------------------------------------------------ Chief Executive Officer and
Eric J. Pulaski President
(Principal Executive Officer)
/s/ EDWARD L. PIERCE Director, Senior Vice President, April 30, 2003
------------------------------------------------ Chief Financial Officer
Edward L. Pierce (Principal Financial Officer)
/s/ KEVIN P. COHN Vice President, Chief Accounting April 30, 2003
------------------------------------------------ Officer and Corporate Controller
Kevin P. Cohn (Principal Accounting Officer)
/s/ PETER T. DAMERIS Director April 30, 2003
------------------------------------------------
Peter T. Dameris
/s/ RICHARD A. HOSLEY II Director April 30, 2003
------------------------------------------------
Richard A. Hosley II
/s/ ROBERT D. REPASS Director April 30, 2003
------------------------------------------------
Robert D. Repass
/s/ ARMAND SHAPIRO Director April 30, 2003
------------------------------------------------
Armand Shapiro
</Table>
14
CERTIFICATIONS PURSUANT TO SECTION 302 OF
THE SARBANES-OXLEY ACT OF 2002
I, Eric J. Pulaski, certify that:
1. I have reviewed this annual report on Form 10-K of BindView Development
Corporation, as amended to date;
2. Based on my knowledge, this annual report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this annual
report;
3. Based on my knowledge, the financial statements, and other financial
information included in this annual report, fairly present in all material
respects the financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this annual report;
4. The registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-14 and 15d-14) for the registrant and we have:
a) designed such disclosure controls and procedures to ensure that
material information relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those entities,
particularly during the period in which this annual report is being
prepared;
b) evaluated the effectiveness of the registrant's disclosure controls
and procedures as of a date within 90 days prior to the filing date of this
annual report (the "Evaluation Date"); and
c) presented in this annual report our conclusions about the
effectiveness of the disclosure controls and procedures based on our
evaluation as of the Evaluation Date;
5. The registrant's other certifying officer and I have disclosed, based on
our most recent evaluation, to the registrant's auditors and the audit committee
of registrant's board of directors (or persons performing the equivalent
function):
a) all significant deficiencies in the design or operation of internal
controls which could adversely affect the registrant's ability to record,
process, summarize and report financial data and have identified for the
registrant's auditors any material weaknesses in internal controls; and
b) any fraud, whether or not material, that involves management or
other employees who have a significant role in the registrant's internal
controls; and
6. The registrant's other certifying officer and I have indicated in this
annual report whether or not there were significant changes in internal controls
or in other factors that could significantly affect internal controls subsequent
to the date of our most recent evaluation, including any corrective actions with
regard to significant deficiencies and material weaknesses.
/s/ ERIC J. PULASKI
--------------------------------------
Eric J. Pulaski
Chairman of the Board,
Chief Executive Officer and President
Date: April 30, 2003
15
CERTIFICATIONS PURSUANT TO SECTION 302 OF
THE SARBANES-OXLEY ACT OF 2002
I, Edward L. Pierce, certify that:
1. I have reviewed this annual report on Form 10-K of BindView Development
Corporation, as amended to date;
2. Based on my knowledge, this annual report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this annual
report;
3. Based on my knowledge, the financial statements, and other financial
information included in this annual report, fairly present in all material
respects the financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this annual report;
4. The registrant's other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as defined in
Exchange Act Rules 13a-14 and 15d-14) for the registrant and we have:
a) designed such disclosure controls and procedures to ensure that
material information relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those entities,
particularly during the period in which this annual report is being
prepared;
b) evaluated the effectiveness of the registrant's disclosure controls
and procedures as of a date within 90 days prior to the filing date of this
annual report (the "Evaluation Date"); and
c) presented in this annual report our conclusions about the
effectiveness of the disclosure controls and procedures based on our
evaluation as of the Evaluation Date;
5. The registrant's other certifying officer and I have disclosed, based on
our most recent evaluation, to the registrant's auditors and the audit committee
of registrant's board of directors (or persons performing the equivalent
function):
a) all significant deficiencies in the design or operation of internal
controls which could adversely affect the registrant's ability to record,
process, summarize and report financial data and have identified for the
registrant's auditors any material weaknesses in internal controls; and
b) any fraud, whether or not material, that involves management or
other employees who have a significant role in the registrant's internal
controls; and
6. The registrant's other certifying officer and I have indicated in this
annual report whether or not there were significant changes in internal controls
or in other factors that could significantly affect internal controls subsequent
to the date of our most recent evaluation, including any corrective actions with
regard to significant deficiencies and material weaknesses.
/s/ EDWARD L. PIERCE
--------------------------------------
Edward L. Pierce
Director, Senior Vice President
and Chief Financial Officer
Date: April 30, 2003
16
EXHIBIT INDEX
Exhibits designated by the symbol * were filed with the Company's Annual
Report on Form 10-K on March 31, 2003. Exhibits designated by the symbol ** are
filed with this Amendment No. 1, Form 10-K/A. All exhibits not so designated are
incorporated by reference to a prior filing as indicated.
Exhibits designated by the symbol + are management contracts or
compensatory plans or arrangements that are required to be filed with this
report pursuant to this Item 15.
We undertake to furnish to any stockholder so requesting a copy of any of
the following exhibits upon payment to us of the reasonable costs incurred by us
in furnishing any such exhibit.
<Table>
<Caption>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
2.1 -- Agreement of Merger dated as of January 26, 2000, by and
among BindView, Bravo Acquisition Corporation, Entevo
Corporation and the Representing Stockholders identified
therein (incorporated by reference to Exhibit 2.1 to
BindView's Current Report on form 8-K (File No. 000-24677),
dated February 9, 2000).
3.1 -- Amended and Restated Articles of Incorporation of BindView
(incorporated by reference to Exhibit 3.1 to the
Registration Statement on Form S-1 of BindView (Reg. No.
333-52883), filed with the Commission on May 15, 1998 (the
"Form S-1")).
3.2 -- Bylaws of BindView Development Corporation, as amended May
23, 2002 (Incorporated by reference to Exhibit 3.3 to
BindView's Quarterly Report on Form 10-Q for the quarter
ended June 30, 2002)
4.1 -- Reference is hereby made to Exhibit 3.1 (incorporated by
reference to Exhibit 4.1 to the Form S-1) and Exhibit 3.2
(incorporated by reference to Exhibit 3.3 to BindView's
Quarterly Report on Form 10-Q for the quarter ended June 30,
2002)
4.2 -- Rights Agreement dated September 17, 2001 between BindView
and Mellon Investor Services LLC (incorporated by reference
to Exhibit 4.1 to BindView's Form 8-K filed on September 20,
2001 (the "9/20/2001 8-K").
4.3 -- Resolution Establishing a Series of Preferred Stock dated
September 17, 2001 (incorporated by reference to Exhibit 4.2
to the 9/20/2001 8-K).
4.4 -- Form of Right Certificate (incorporated by reference to
Exhibit 4.3 to the 9/20/2001 8-K).
4.5 -- Summary of Rights to Purchase Preferred Shares (incorporated
by reference to Exhibit 4.4 to the 9/20/2001 8-K).
10.1+ -- Incentive Stock Option Plan (incorporated by reference to
Exhibit 10.1 to the Form S-1).
10.2+ -- Stock Option Plan (incorporated by reference to Exhibit 10.2
to the Form S-1).
10.3+ -- 1997 Incentive Plan (incorporated by reference to Exhibit
10.3 to the Form S-1).
10.4+ -- Omnibus Incentive Plan, as amended (incorporated by
reference to Exhibit 10.2 to BindView's Annual Report on
Form 10-K for the year ended December 31, 1999 (the "1999
10-K").
10.5 -- Agreement to Sublease dated June 25, 1998 between BindView
and Halliburton Energy Services, Inc.
10.6 -- Lease Agreement dated June 20, 1995 between BindView and
School Employees Holding Corp., including all amendments
thereto (incorporated by reference to Exhibit 10.7 to the
Form S-1).
10.7+ -- Amended and Restated Employment Agreement, dated June 24,
1999, between BindView and Marc R. Caminetsky (incorporated
by reference to BindView's Quarterly Report On Form 10-Q
(File No. 000-24677) for the quarter ended June 30, 1999
(the "6/30/99 10-Q").
10.8+ -- Amended and Restated Employment Agreement, dated June 24,
1999, between BindView and Paul J. Cormier (incorporated by
reference to Exhibit 10.2 to the 6/30/99 10-Q).
10.9+ -- Executive Employment Agreement dated October 2, 2000 between
BindView and Kevin M. Weiss (incorporated by reference to
Exhibit 10.10 to BindView's Annual Report on Form 10-K for
the year ended December 31, 2000 (the "2000 10-K")
</Table>
17
<Table>
<Caption>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
10.10+ -- Employee Agreement dated September 26, 1996 between the
Registrant and David E. Pulaski (incorporated by reference
to Exhibit 10.14 to the Form S-1).
10.11+ -- Form of Indemnification Agreement (incorporated by reference
to Exhibit 10.16 to the Form S-1).
10.12+ -- Executive Employment Agreement dated May 1, 2001 between
BindView and Edward L. Pierce (incorporated by reference to
Exhibit 10.1 to BindView's Quarterly Report on Form 10-Q for
the quarter ended June 30, 2001 (the "6/30/2001 10-Q").
10.13+ -- Restricted Stock Agreement dated May 1, 2001 between
BindView and Edward L. Pierce (incorporated by reference to
Exhibit 10.2 to the 6/30/2001 10-Q).
10.14+ -- Promissory Note dated May 1, 2001 executed in favor of
Bindview by Edward L. Pierce (incorporated by reference to
Exhibit 10.3 to the 6/30/2001 10-Q).
10.15+ -- Change of Control Agreement dated May 1, 2001 between
BindView and Edward L. Pierce (incorporated by reference to
Exhibit 10.4 to the 6/30/2001 10-Q).
10.16+ -- Indemnification Agreement dated May 1, 2001 between BindView
and Edward L. Pierce (incorporated by reference to Exhibit
10.5 to the 6/30/2001 10-Q).
10.17+ -- Nonqualified Stock Option Agreement dated May 1, 2001
between BindView and Richard P. Gardner (incorporated by
reference to Exhibit 10.6 to the 6/30/2001 10-Q).
10.18+ -- Nonqualified Stock Option Agreement dated May 1, 2001
between BindView and William D. Miller (incorporated by
reference to Exhibit 10.7 to the 6/30/2001 10-Q).
10.19+ -- Nonqualified Stock Option Agreement dated May 1, 2001
between BindView and Kevin M. Weiss (incorporated by
reference to Exhibit 10.8 to the 6/30/2001 10-Q).
10.20+ -- Executive Employment Agreement dated May 31, 2001 between
BindView and Kevin P. Cohn (incorporated by reference to
Exhibit 10.9 to the 6/30/2001 10-Q).
10.21+ -- Nonqualified Stock Option Agreement dated May 31, 2001
between BindView and Kevin P. Cohn (incorporated by
reference to Exhibit 10.10 to the 6/30/2001 10-Q).
10.22+ -- Change of Control Agreement dated May 31, 2001 between
BindView and Kevin P. Cohn (incorporated by reference to
Exhibit 10.11 to the 6/30/2001 10-Q).
10.23+ -- Indemnification Agreement dated May 31, 2001 between
BindView and Kevin P. Cohn (incorporated by reference to
Exhibit 10.12 to the 6/30/2001 10-Q).
10.24+ -- Indemnification Agreement dated July 18, 2001 between
BindView and Gary S. Margolis (incorporated by reference to
Exhibit 10.1 to BindView's Quarterly Report on Form 10-Q for
the quarter ended September 30, 2001 (the "9/30/2001 10-Q").
10.25+ -- Separation Agreement dated August 1, 2001 to be effective
July 2, 2001 between BindView and Richard P. Gardner
(incorporated by reference to Exhibit 10.2 to the 9/30/2001
10-Q).
10.26+ -- Separation Agreement dated August 3, 2001 to be effective
July 16, 2001 between BindView and Kevin M. Weiss
(incorporated by reference to Exhibit 10.3 to the 9/30/2001
10-Q).
10.27+ -- 1998 Non-Employee Director Stock Option Plan, as amended
October 26, 2001 and February 21, 2002 (incorporated by
reference to Exhibit 10.28 to BindView's Annual Report on
Form 10K for the year ended December 31, 2001 (the "2001
10-K"))
10.28+ -- Amended and Restated Executive Employment Agreement dated
December 31, 2001 between BindView and Edward L. Pierce
(incorporated by reference to Exhibit 10.29 to the 2001
10-K)
10.29 -- Lease agreement dated March 30, 2001 between BindView and
Sage Plaza One Ltd (incorporated by reference to Exhibit
10.30 to the 2001 10-K)
10.30+ -- Indemnification Agreement between the Company and Armand S.
Shapiro, effective October 26, 2001 (incorporated by
reference to Exhibit 10.31 to the 2001 10-K)
10.31+ -- Promissory Note dated December 31, 2001 executed in favor of
Bindview by Edward L. Pierce (incorporated by reference to
Exhibit 10.32 to the 2001 10-K)
10.32+ -- Rescission Agreement dated December 31, 2001 between
BindView and Edward L. Pierce (incorporated by reference to
Exhibit 10.33 to the 2001 10-K)
</Table>
18
<Table>
<Caption>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
10.33+ -- Restricted Stock Agreement dated December 31, 2001 between
BindView and Edward L. Pierce (incorporated by reference to
Exhibit 10.34 to the 2001 10-K)
10.34+ -- Security Agreement dated December 31, 2001 between BindView
and Edward L. Pierce (incorporated by reference to Exhibit
10.35 to the 2001 10-K)
10.35+ -- Indemnification agreement between the Company and Eric J.
Pulaski, executed March 27, 2002 (incorporated by reference
to Exhibit 10.1 to BindView's Quarterly Report on Form 10-Q
for the quarter ended March 31, 2002 (the "3/31/2002 10-Q"))
10.36+ -- Indemnification agreement between the Company and Peter L.
Bloom, executed March 27, 2002 (incorporated by reference to
Exhibit 10.2 to the 3/31/2002 10-Q)
10.37+ -- Indemnification agreement between the Company and Richard A.
Hosley II, executed March 27, 2002 (incorporated by
reference to Exhibit 10.2 to the 3/31/2002 10-Q)
10.38+ -- Indemnification agreement between the Company and Peter T.
Dameris, executed August 15, 2002 (incorporated by reference
to Exhibit 10.1 to BindView's Quarterly Report on Form 10-Q
for the quarter ended September 30, 2002 (the "9/30/2002
10-Q"))
10.39+ -- Nonqualified Stock Option Agreement, August 15, 2002,
between the Company and Peter T. Dameris (incorporated by
reference to Exhibit 10.2 to the 9/30/2002 10-Q)
10.40+ -- 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)
10.41* -- 1999 Employee Stock Purchase Plan, as amended effective
January 1, 2001
10.42* -- Second Amendment to Employee Stock Purchase Plan, adopted by
the Board of Directors on January 27, 2003, subject to
subsequent shareholder approval
10.43* -- BindView Development Corporation 2000 Indian Stock Option
Plan, as amended through March 30, 2001
10.44* -- BindView Development Corporation 2000 Employee Incentive
Plan, as amended through March 30, 2001
10.45*+ -- Executive Employment Agreement entered into effective
December 30, 2002, between the Company and Eric J. Pulaski
10.46*+ -- Employment Offer Letter dated December 31, 2002, between the
Company and David S. Flame
10.47*+ -- Employment Offer Letter dated November 9, 2002, between the
Company and David E. Lloyd
10.48*+ -- Executive Employment Agreement entered into effective
December 30, 2002, between the Company and Gary S. Margolis
10.49*+ -- Employment Offer Letter dated November 4, 2002, between the
Company and Ronald E. Rosenthal
10.50*+ -- Form of Change of Control Agreement entered into effective
December 30, 2002, between the Company and, respectively,
Eric J. Pulaski, Kevin P. Cohn, Jeffery E. Margolis, Gary E.
Margolis, and D.C. Toedt
10.51*+ -- Separation Agreement entered into effective December 31,
2002, between the Company and Kenneth D. Naumann
10.52*+ -- Form of First Amended and Restated Executive Employment
Agreement entered into effective December 30, 2002, between
the Company and, respectively, Jeffery E. Margolis, Kevin P.
Cohn, and D.C. Toedt
10.53*+ -- Form of Executive Employment Agreement entered into
effective December 30, 2002, between the Company and,
respectively, Scott S. Blake, Shantanu Ghosh, Diana M.
Massaro, and Bruce K. Swope
10.54*+ -- Form of Change of Control Agreement entered into effective
December 30, 2002, between the Company and, respectively,
Scott S. Blake, Shantanu Ghosh, Diana M. Massaro, and Bruce
K. Swope
</Table>
19
<Table>
<Caption>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
10.55** -- [Separation] Agreement (Including General Release) dated
effective July 15, 2002, between the Company and William D.
Miller.
10.56** -- Executive Employment Agreement entered into effective
December 30, 2002, between the Company and Ronald E.
Rosenthal.
10.57** -- Change of Control Agreement entered into effective December
30, 2002, between the Company and Ronald E. Rosenthal.
21.1* -- Subsidiaries of the Company
23.1* -- Consent of PricewaterhouseCoopers
99.1* -- Certification of the Company's Chief Executive Officer, Eric
J. Pulaski, pursuant to Section 906 of the Sarbanes-Oxley
Act of 2002
99.2* -- Certification of the Company's Chief Financial Officer,
Edward L. Pierce, pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002
</Table>
20