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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE TO
(RULE 13e-4)
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
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BINDVIEW DEVELOPMENT CORPORATION
(NAME OF SUBJECT COMPANY (ISSUER) AND FILING PERSON (OFFEROR))
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CERTAIN OPTIONS TO PURCHASE COMMON STOCK, NO PAR VALUE PER SHARE
(TITLE OF CLASS OF SECURITIES)
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090327 10 7
(CUSIP NUMBER OF CLASS OF SECURITIES)
(UNDERLYING COMMON STOCK)
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EDWARD L. PIERCE
CHIEF FINANCIAL OFFICER
BINDVIEW DEVELOPMENT CORPORATION
5151 SAN FELIPE, 25TH FLOOR
HOUSTON, TEXAS 77056
(713) 561-4000
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES AND
COMMUNICATIONS ON BEHALF OF FILING PERSON)
COPY TO:
ROBERT F. GRAY, JR.
FULBRIGHT & JAWORSKI L.L.P.
1301 MCKINNEY, SUITE 5100
HOUSTON, TEXAS 77010
(713) 651-5151
CALCULATION OF FILING FEE
<Table>
<Caption>
TRANSACTION VALUATION* AMOUNT OF FILING FEE*
$794,007.09 $64.24
</Table>
* The "transaction valuation" was calculated solely for purposes of
determining the filing fee. This amount assumes that options to
purchase 999,883 shares of common stock of BindView Development
Corporation, having an aggregate value of $794,007.09, will be
exchanged pursuant to the exchange offer made December 3, 2002,
following the expiration of this rescission offer. The aggregate value
of such options was calculated based on the Black-Scholes option
pricing model. The aggregate value of each option to purchase one share
of Common Stock of BindView Development Corporation is $0.7941. The
filing fee was calculated as $80.90 per $1,000,000 of the aggregate
offering amount, pursuant to Rule 0-11 of the Securities Exchange Act
of 1934, as amended by Fee Rate Advisory #11, effective February 25,
2003.
[ ] Check box if any part of the fee is offset as provided by Rule
0-11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
Amount Previously Paid: Not applicable.
Form or Registration No.: Not applicable.
Filing party: Not applicable.
Date filed: Not applicable.
[ ] Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
[ ] Check the appropriate boxes below to designate any transactions to which
the statement relates:
[ ] third party tender offer subject to Rule 14d-1.
[X] issuer tender offer subject to Rule 13e-4.
[ ] going-private transaction subject to Rule 13e-3.
[ ] amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the
results of the tender offer. [ ]
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THE FILING OF THIS SCHEDULE TO SHALL NOT BE CONSTRUED AS AN ADMISSION
BY BINDVIEW DEVELOPMENT CORPORATION THAT THE EXCHANGE OFFER (as defined below)
CONSTITUTED AN ISSUER TENDER OFFER FOR PURPOSES OF THE SECURITIES EXCHANGE ACT
OF 1934, AS AMENDED, AND THE RULES PROMULGATED THEREUNDER.
INTRODUCTORY STATEMENT
This Rescission Offer Statement on Schedule TO relates to the exchange
offer effected December 3, 2002 (the "Exchange Offer"), by BindView Development
Corporation to exchange options to purchase shares of our common stock, no par
value per share, held by eligible employees on the terms and subject to the
conditions described in the Offer to Rescind the Exchange of Certain Outstanding
Options for New Options, dated May 30, 2003 (the "Offer to Rescind the
Exchange"), as amended.
ITEM 1. SUMMARY TERM SHEET.
The information set forth under "Summary Term Sheet" in the Offer to Rescind the
Exchange, attached hereto as Exhibit (a)(1), is incorporated herein by
reference.
ITEM 2. SUBJECT COMPANY INFORMATION.
(a) The name of the issuer is BindView Development Corporation, a
Texas corporation (the "Company" or "BindView"), the address of
its principal executive offices is 5151 San Felipe, Suite 2500,
Houston, Texas 77056, and its telephone number is (713) 561-4000.
The information set forth in the Offer to Rescind the Exchange
under Section 10 ("Information Concerning BindView") is
incorporated herein by reference.
(b) As of May 13, 2003, there were 46,574,500 shares of the Company's
common stock, no par value, outstanding. This Tender Offer
Statement on Schedule TO relates to an offer by the Company to
rescind the exchange of certain options, pursuant to the terms and
conditions of the Offer to Exchange, held by current employees
(excluding those who have received a written notification of their
termination), to purchase 999,883 shares of the Company's common
stock, no par value per share (the "Common Stock"), that were
issued under the following stock option plans (the "Qualifying Old
Options") (all such plans are sometimes hereinafter referred to
collectively as the "Plans"):
(1) BindView Development Corporation 1997 Incentive Plan;
(2) BindView Development Corporation Stock Option Plan;
(3) BindView Development Corporation Incentive Stock
Option Plan;
(4) BindView Development Corporation 1998 Omnibus
Incentive Plan;
(5) BindView Development Corporation 2000 Indian Stock
Option Plan (the "2000 Indian Plan"); and
(6) BindView Development Corporation 2000 Employee
Incentive Plan (the "2000 Plan").
Pursuant to the terms and subject to the conditions described in the
Offer to Exchange, the new option grants (the "New Option Grants") will
be granted under the 2000 Plan, or for certain employees residing
outside of the United States, under the 2000 Indian Plan.
The terms and conditions of the offer to rescind the Offer to Exchange
can be found in the Notice to Withdraw from the Offer Form attached
hereto as Exhibit (a)(2) (the "Notice to Withdraw form") and the Offer
to Rescind
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the Exchange document (the Notice to Withdraw form together with the
Offer to Rescind the Exchange document, as they may be amended or
supplemented from time to time, the "Rescission Offer"). For each
Qualifying Old Option you returned for exchange and do not rescind
pursuant to the Rescission Offer, you will receive a New Option Grant.
The number of shares that will be subject to each New Option Grant will
be less than the number of shares subject to the applicable Surrendered
Qualifying Old Option.
The ratio by which you can determine the actual number of shares that
will be subject to any New Option Grant is set forth in the table
below:
<Table>
<Caption>
Exercise Price of
Qualifying Old Options Exchange Ratio
- ---------------------- --------------
$3.00 to $4.99 2 New Options for 3 Qualifying Old Options
$5.00 to $8.99 1 New Option for 2 Qualifying Old Options
$9.00 and above 1 New Option for 3 Qualifying Old Options
</Table>
The New Options will be granted under, and will be subject to, the
terms and conditions of the 2000 Plan, or for certain employees
residing outside of the United States, under the 2000 Indian Plan. The
exercise price of a New Option will be equal to the fair market value
of a share of the Common Stock on the New Option Grant date. No New
Options Grants will be made for fractional shares.
The number of shares subject to each New Option Grant will be
proportionately adjusted for any stock splits, stock dividends and
recapitalization with respect to shares of our common stock occurring
after the Expiration Date of the Offer. The information set forth in
the Offer to Rescind the Exchange in the introductory pages and under
"Summary Term Sheet", Section 1 ("Exchange Withdrawal; Rescission Offer
Expiration Date"), Section 3 ("Status of Qualifying Old Options Not
Exchanged"), Section 5 ("Acceptance of Options for Exchange and
Issuance of New Options") and Section 8 ("Source and Amount of
Consideration; Terms of New Options") is incorporated herein by
reference.
(c) The information set forth in the Offer to Rescind the Exchange
under Section 7 ("Price Range of Common Stock Underlying the
Options") is incorporated herein by reference.
ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSON.
(a) The Company is the filing person. The information set forth under
Item 2(a) above is incorporated herein by reference.
ITEM 4. TERMS OF THE TRANSACTION.
(a) The information set forth in the Offer to Rescind the Exchange in
the introductory pages and under "Summary Term Sheet," Section 1
("Exchange Withdrawal; Rescission Offer Expiration Date"), Section
3 ("Status of Qualifying Old Options Not Exchanged"), Section 4
("Withdrawal Rights"), Section 5 ("Acceptance of Options for
Exchange and Issuance of New Options"), Section 6 ("Conditions of
the Rescission Offer"), Section 8 ("Source and Amount of
Consideration; Terms of New Options"), Section 9 ("New Options
Will Differ from Qualifying Old Options"), Section 12 ("Status of
Options Acquired by Us in the Rescission Offer; Accounting
Consequences of the Rescission Offer"), Section 13 ("Legal
Matters; Regulatory Approvals"), Section 14 ("Material U.S.
Federal Income Tax Consequences"), Section 15 ("Extension of
Rescission Offer; Termination; Amendment"), and Section 18
("Miscellaneous") is incorporated herein by reference.
(b) The information set forth in the Offer to Exchange under Section
11 ("Interests of Directors and Officers; Transactions and
Arrangements Concerning the Options") is incorporated herein by
reference.
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ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND ARRANGEMENTS.
The information set forth in the Offer to Rescind the Exchange
under Section 11 ("Interests of Directors and Officers;
Transactions and Arrangements Concerning the Options") is
incorporated herein by reference.
ITEM 6. PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS.
(a) The information set forth in the Offer to Rescind the Exchange
under Section 2 ("Purpose of the Exchange Offer") is incorporated
herein by reference.
(b) The information set forth in the Offer to Rescind the Exchange
under Section 5 ("Acceptance of Options for Exchange and Issuance
of New Options") and Section 12 ("Status of Options Acquired by Us
in the Rescission Offer; Accounting Consequences of the Rescission
Offer") is incorporated herein by reference.
(c) The information set forth in the Offer to Rescind the Exchange
under Section 2 ("Purpose of the Exchange Offer") is incorporated
herein by reference.
ITEM 7. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a) The information set forth in the Offer to Rescind the Exchange
under Section 8 ("Source and Amount of Consideration; Terms of New
Options") and Section 16 ("Fees and Expenses") is incorporated
herein by reference.
(b) Not applicable.
(d) Not applicable.
ITEM 8. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
(a) The information set forth in the Offer to Rescind the Exchange
under Section 11 ("Interests of Directors and Officers;
Transactions and Arrangements Concerning the Options") is
incorporated herein by reference.
(b) The information set forth in the Offer to Rescind the Exchange
under Section 11 ("Interests of Directors and Officers;
Transactions and Arrangements Concerning the Options") is
incorporated herein by reference.
ITEM 9. PERSON/ASSETS, RETAINED, EMPLOYED, COMPENSATED OR USED.
(i) Not applicable.
ITEM 10. FINANCIAL STATEMENTS.
(a) The information set forth in the Offer to Rescind the Exchange
under Section 10 ("Information Concerning BindView") and Section
17 ("Additional Information") is incorporated herein by reference.
Item 7 ("Financial Statements and Supplementary Data") of the
Company's Annual Report on Form 10-K for its fiscal year ended
December 31, 2002, including all material incorporated by
reference therein, is incorporated herein by reference.
(b) Not applicable.
ITEM 11. ADDITIONAL INFORMATION.
(a) The information set forth in the Offer to Rescind the Exchange
under Section 11 ("Interests of Directors and Officers;
Transactions and Arrangements Concerning the Options") and Section
13 ("Legal Matters; Regulatory Approvals") is incorporated herein
by reference.
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(b) Not applicable.
ITEM 12. EXHIBITS
(a)(1) Offer to Rescind the Exchange of Certain Outstanding Options for
New Options, dated May 30, 2003.
(a)(2) Notice to Withdraw from the Offer Form
(a)(3) Email to Employees Announcing Offer to Rescind the Exchange.
(a)(4) Addendum for Employees in India.
(a)(5) Confirmation of Election Email to Employees.
(a)(6) BindView Development Corporation Annual Report on Form 10-K for
its fiscal year ended December 31, 2002, filed with the Securities
and Exchange Commission (the "Commission") on March 31, 2003, as
amended on Form 10-K/A filed with the Commission on April 30,
2003, is incorporated herein by reference.
(a)(7) BindView Development Corporation Quarterly Report on Form 10-Q for
the fiscal quarter ended March 31, 2003, filed with the Commission
on May 15, 2003;
(b) Not applicable.
(d)(1) Incentive Stock Option Plan (incorporated by reference to
Exhibit 10.1 to the Form S-1).
(d)(2) Stock Option Plan (incorporated by reference to Exhibit 10.2 to
the Form S-1).
(d)(3) 1997 Incentive Plan (incorporated by reference to Exhibit 10.3 to
the Form S-1).
(d)(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).
(d)(5) 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 10-K for the
year ended December 31, 2001).
(d)(6) BindView Development Corporation 2000 Indian Stock Option Plan, as
amended through March 30, 2001 (incorporated by reference to
Exhibit 10.43 to BindView's Annual Report on Form 10-K for the
year ended December 31, 2002 (the "2002 10-K")).
(d)(7) BindView Development Corporation 2000 Employee Incentive Plan, as
amended through March 30, 2001 (incorporated by reference to
Exhibit 10.44 to the 2002 10-K).
(g) Not applicable.
(h) Not applicable.
ITEM 13. INFORMATION REQUIRED BY SCHEDULE 13E-3.
(a) Not applicable.
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this Schedule TO is true, complete and
correct.
BINDVIEW DEVELOPMENT CORPORATION
By: /s/ Edward Pierce
------------------------------------
Edward L. Pierce
Chief Financial Officer
Date: May 30, 2003
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Index to Exhibits
<Table>
<Caption>
EXHIBIT
NUMBER DESCRIPTION
(a)(1) Offer to Rescind the Exchange of Certain Outstanding Options for
New Options, dated May 30, 2003.
(a)(2) Notice to Withdraw from the Offer Form
(a)(3) Email to Employees Announcing Offer to Rescind the Exchange.
(a)(4) Addendum for Employees in India.
(a)(5) Confirmation of Election Email to Employees.
(a)(6) BindView Development Corporation Annual Report on Form 10-K for
its fiscal year ended December 31, 2002, filed with the Securities
and Exchange Commission (the "Commission") on March 31, 2003, as
amended on Form 10-K/A filed with the Commission on April 30,
2003, is incorporated herein by reference.
(a)(7) BindView Development Corporation Quarterly Report on Form 10-Q for
the fiscal quarter ended March 31, 2003, filed with the Commission
on May 15, 2003;
(b) Not applicable.
(d)(1) Incentive Stock Option Plan (incorporated by reference to
Exhibit 10.1 to the Form S-1).
(d)(2) Stock Option Plan (incorporated by reference to Exhibit 10.2 to
the Form S-1).
(d)(3) 1997 Incentive Plan (incorporated by reference to Exhibit 10.3 to
the Form S-1).
(d)(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).
(d)(5) 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 10-K for the
year ended December 31, 2001).
(d)(6) BindView Development Corporation 2000 Indian Stock Option Plan, as
amended through March 30, 2001 (incorporated by reference to
Exhibit 10.43 to the 2002 10-K).
(d)(7) BindView Development Corporation 2000 Employee Incentive Plan, as
amended through March 30, 2001 (incorporated by reference to
Exhibit 10.44 to the 2002 10-K).
(g) Not applicable.
(h) Not applicable.
</Table>
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