EXHIBIT (a)(4)
BINDVIEW DEVELOPMENT CORPORATION
ADDENDUM FOR EMPLOYEES IN INDIA
BindView Development Corporation ("BindView") is making a rescission
offer to those employees of BindView and its subsidiaries who previously
accepted the Exchange Offer. The rescission offer is being made upon the terms
and subject to the conditions set forth in the Offer to Rescind the Exchange of
Certain Outstanding Options for New Options (the "Rescission Offer Document")
and in the related Notice to Withdraw From the Exchange Offer form (the "Notice
to Withdraw" or "Notice of Withdrawal form", and together with this Rescission
Offer Document, as they may be amended or supplemented from time to time, the
"Rescission Offer"). This addendum indicates changes from the terms and
conditions of the Rescission Offer Document and the Notice to Withdraw that are
applicable to you. Any section, term, definition, or condition in this addendum
supercedes the corresponding section, term, definition or condition in the
Rescission Offer Document and Notice to Withdraw. Except as amended by this
addendum, the sections, terms, definitions, or conditions in the Rescission
Offer Document and Notice to Withdraw shall have the meaning and effect
described therein.
RESCISSION OFFER DOCUMENT
(The following are the changes to the Rescission Offer Document)
The term "New Options" means new option grants to purchase shares of
BindView common stock under the 2000 Indian Plan.
Any reference in the Rescission Offer Document made to tax
consequences and considerations are specific to the United States Tax Code and
likely are not comparable to India tax laws. Therefore, references to tax
consequences and considerations in the Rescission Offer Document are not likely
to be applicable to you, unless you are subject to the U. S. federal tax laws.
We urge you to obtain counsel from a financial or tax advisor to determine any
tax consequences and considerations you may have pursuant to participation in
either the Exchange Offer or the Rescission Offer.
If you wish to accept the Rescission Offer and wish to withdraw one or
more of your option grants from the Exchange, you must complete and sign the
Notice to Withdraw and return your signed Notice to Withdraw form and any other
required documents to us at BindView India Private Limited, 4 th Floor MRSS
Bldg. 5 B. J. Road, Pune, Maharashtra, 411-001, INDIA, Attn: Abhay Joshi. We
are requiring that all hard copy Notice to Withdraw forms be physically
received by 5:00 p.m. Pune time (if mailed, it must be postmarked) on the
Rescission Offer Expiration Date, currently expected to be June 27, 2003 unless
we extend it.
SUMMARY TERM SHEET (BEGINNING ON PAGE 3 OF THE RESCISSION OFFER DOCUMENT)
22. WHAT HAPPENS IF BINDVIEW MERGES INTO OR IS ACQUIRED BY
ANOTHER COMPANY?
The consequence and effect of a merger or
acquisition of BindView will differ depending on the timing
and form of the transaction.
-1-
If we merge into or are acquired by another company
before the expiration of this Rescission Offer, you may
withdraw your returned Qualifying Old Options and exercise
them in accordance with the terms of the applicable Plan and
option agreement.
If before the New Options are granted, we are
acquired and become a subsidiary of the acquiring corporation
after the expiration of this Rescission Offer and you have
not accepted this Rescission Offer, our obligations in
connection with this Rescission Offer would not be
automatically assumed by the acquiring corporation. Whether
or not the obligation to grant the New Options is assumed
would depend on the terms of the acquisition agreement. While
we expect that we would seek to make provisions in the
acquisition agreement for the granting of the New Options to
tendering option holders, we cannot guarantee what, if any,
provision would be made. AS A RESULT, WE CANNOT GUARANTEE
THAT ANY NEW OPTIONS WOULD BE GRANTED BY THE ACQUIROR IN THE
EVENT OF SUCH AN ACQUISITION. THEREFORE, IF YOU DO NOT ACCEPT
THIS RESCISSION OFFER, IT IS POSSIBLE THAT YOU MIGHT NOT
RECEIVE ANY NEW OPTIONS FROM THE ACQUIRING CORPORATION.
If, before the New Options are granted, instead of
becoming a subsidiary, we are merged directly into another
entity after the expiration of this Rescission Offer and you
have not accepted this Rescission Offer, the surviving
corporation would automatically assume our obligations with
respect to the Exchange Offer. The New Options would be
option grants to purchase shares of the surviving
corporation. The number of shares would be equal to the
number of our shares that you would have received under the
New Option multiplied by the exchange ratio that was used in
the transaction. The exercise price would be based on the
fair market value of the surviving corporation's stock on the
date the New Options are granted. (See "Section 5 Acceptance
of Options for Exchange and Issuance of New Options,
Subsection `Consequences of BindView Being Acquired'" of this
addendum)
RESCISSION OFFER (BEGINNING ON PAGE 13 OF THE RESCISSION OFFER
DOCUMENT)
Section 4 Withdrawal Rights (page 15)
4. WITHDRAWAL RIGHTS.
You may only withdraw your returned options in
accordance with the provisions of this Section 4. If your
employment with us terminates prior to the Rescission Offer
Expiration Date, your returned Qualifying Old Options will
automatically be withdrawn. If automatically withdrawn, you
may exercise those options to the extent they are vested at
the time of your termination, but only during the limited
period for which those options remain exercisable following
your termination.
-2-
You may withdraw your returned options at any time
before 5:00 p.m., Pune time, on June 27, 2003. If this
Rescission Offer is extended by us beyond that time, you may
withdraw your returned Qualifying Old Options at any time
until the extended Rescission Offer Expiration Date.
To validly withdraw your returned options, you must
deliver to us to the attention of Abhay Joshi a properly
completed and executed Notice of Withdrawal form, or a
facsimile thereof, with the required information, while you
still have the right to withdraw the returned options. Any
Notice of Withdrawal form sent to us by mail must be
postmarked no later than the Rescission Offer Expiration
Date.
ALTHOUGH YOU MAY WITHDRAW SOME, BUT NOT ALL, OF YOUR
RETURNED QUALIFYING OLD OPTIONS, YOU MAY NOT WITHDRAW ONLY A
PORTION OF A PARTICULAR RETURNED QUALIFYING OLD OPTION.
Except in accordance with the next sentence, a
Notice of Withdrawal form must be executed by the option
holder who returned the options to be withdrawn. If the
signature is by a trustee, executor, administrator, guardian,
attorney-in-fact, officer of a corporation or another person
acting in a fiduciary or representative capacity, the
signer's full title and proper evidence of the authority of
such person to act in such capacity must be indicated on the
Notice to Withdraw.
You may not rescind any withdrawal, and any options
you withdraw will thereafter be deemed not properly returned
for purposes of the Exchange Offer.
Neither BindView nor any other person is obligated
to give notice of any defects or irregularities in any Notice
to Withdraw, nor will anyone incur any liability for failure
to give any such notice. We will determine, in our
discretion, all questions as to the form and validity,
including time of receipt, of Notices to Withdraw. Our
determination of these matters will be final and binding.
Section 5 Acceptance of Options for Exchange and Issuance of New
Options, Subsection "Consequences of BindView Being Acquired"
(page 17)
If we merge into or are acquired by another company
before the end of the period for accepting this Rescission
Offer, you may withdraw your previously-surrendered
Qualifying Old Options and have all the rights afforded you
to acquire our common stock under the existing agreements
evidencing those options.
If we are acquired and become a subsidiary of the
acquiring corporation after the Rescission Offer Expiration
Date but before the New Options are granted, the obligations
of BindView in connection with the Exchange Offer would not
be automatically assumed by the acquiring corporation.
Whether or not the obligation to grant the New Options is
assumed would depend on the terms of the acquisition
agreement. While we expect that we would seek to make
provision
-3-
for participating option holders in the acquisition
agreement, we cannot guarantee what, if any, provision would
be made. AS A RESULT, WE CANNOT GUARANTEE THAT ANY NEW
OPTIONS WOULD BE GRANTED BY THE ACQUIRING COMPANY IN THE
EVENT OF SUCH AN ACQUISITION. THEREFORE, IF YOU DO NOT ACCEPT
THIS RESCISSION OFFER, IT IS POSSIBLE THAT YOU MIGHT NOT
RECEIVE ANY NEW OPTIONS FROM THE ACQUIRING COMPANY.
If, instead of becoming a subsidiary, we are merged
directly into another entity after the Rescission Offer
Expiration Date but before the New Options are granted, the
surviving corporation would automatically assume our
obligations with respect to the Exchange Offer. The New
Options would be options to purchase shares of the surviving
corporation. The number of shares would be equal to the
number of shares subject to your New Options at the time of
the Rescission Offer Expiration Date, multiplied by the
exchange ratio in effect for the exchange of shares of our
common stock for shares of the surviving corporation in the
merger. The exercise price would be based on the market price
of the surviving corporation's stock on the date the New
Options are granted.
If we merge into or are acquired by another company
after the grant of the New Options, those options may be
assumed by the merged company or the acquiring company, in
which event they would continue to vest in accordance with
the vesting schedule in effect for them prior to the
acquisition. If the New Options are not assumed then except
as otherwise provided in an option agreement or as a result
of the Board of Director's effectuation of one or more of the
alternatives described below, there will be no acceleration
of the time at which any Option then outstanding may be
exercised, and no later than ten (10) days after the approval
by the stockholders of BindView of such merger, the Board,
acting in its sole and absolute discretion without the
consent or approval of any New Option holder, shall act to
effect one or more of the following alternatives, which may
vary among individual New Option holders and which may vary
among New Options held by any individual New Option holder:
(1) accelerate the time at which some or all of the
New Options then outstanding may be exercised so that the New
Options may be exercised in full for a limited period of time
on or before a specified date fixed by the Board, after which
specified date all such New Options that remain unexercised
and all rights of New Option holders thereunder shall
terminate,
(2) require the mandatory surrender to BindView by
all or selected New Option holders of some or all of the then
outstanding New Options held by such New Option holders
(irrespective of whether such New Options are then
exercisable under the provisions of the 2000 Indian Plan or
the option agreements evidencing such New Options) as of a
date, before or after such merger, specified by the Board, in
which event the Board shall thereupon cancel such New Options
and BindView shall pay to each such New Option holder an
amount of cash per share equal to the excess, if any, of the
per share price offered to stockholders of
-4-
BindView in connection with the merger over the exercise
price(s) under such New Options for such shares,
(3) with respect to all or selected New Option
holders, have some or all of their then outstanding New
Options (whether vested or unvested) assumed or have a new
option substituted for some or all of their then outstanding
New Options (whether vested or unvested) by an entity which
is a party to the merger and which is then employing him, or
a parent or subsidiary of such entity, provided that (A) such
assumption or substitution is on a basis where the excess of
the aggregate Fair Market Value of the Shares subject to the
option immediately after the assumption or substitution over
the aggregate exercise price of such shares is equal to the
excess of the aggregate Fair Market Value of all shares
subject to the option immediately before such assumption or
substitution over the aggregate exercise price of such
shares, and (B) the assumed rights under such existing option
or the substituted rights under such new option as the case
may be will have the same terms and conditions as the rights
under the existing option assumed or substituted for, as the
case may be,
(4) provide that the number and class of shares of
Common Stock covered by a New Option (whether vested or
unvested) theretofore granted shall be adjusted so that such
New Option when exercised shall thereafter cover the number
and class of shares of stock or other securities or property
(including, without limitation, cash) to which the New Option
holder would have been entitled pursuant to the terms of the
agreement and/or plan relating to the merger if, immediately
prior to the merger, the New Option holder had been the
holder of record of the number of shares of Common Stock then
covered by such New Option, or
(5) make such adjustments to New Options then
outstanding as the Board deems appropriate to reflect the
merger (provided, however, that the Board may determine in
its sole and absolute discretion that no such adjustment is
necessary).
In effecting one or more of alternatives (3), (4) or
(5) above, and except as otherwise may be provided in an
option agreement, the Board, in its sole and absolute
discretion and without the consent or approval of any New
Option holder, may accelerate the time at which some or all
New Options then outstanding may be exercised.
Section 8 Source and Amount of Consideration; Terms of New Options,
Subsection "2000 Plan" (page 22)
2000 Indian Plan. The following description of the
2000 Indian Plan is a summary of the principal provisions of
that document but is not complete. The description is subject
to, and qualified in its entirety by reference to, all
provisions of the 2000 Indian Plan. The complete document, as
most recently amended, has been filed as Exhibit 10.43 to our
annual report on Form 10-K filed with the U.S.
-5-
Securities and Exchange Commission on March 31, 2003. Please
contact Abhay Joshi, to receive a copy of the 2000 Indian
Plan document. We will promptly furnish you copies of this
document at our expense.
2000 Indian Plan
General. The 2000 Indian Plan is administered (the
"Administrator") by BindView's Board of Directors or a
committee of directors appointed by the Board of Directors
(the "Committee"). The Administrator, subject to the
provisions of the Plan and, in the case of a Committee, the
specific duties delegated by the Board to such Committee, and
subject to the approval of any relevant authorities, has the
discretion to determine which eligible individuals receive
option grants or stock awards, the time or times when those
grants or awards are to be made, and the number of shares
subject to each such grant or award.
Share Reserve. An aggregate of 500,000 shares of
common stock have been reserved for issuance over the term of
the 2000 Indian Plan. The shares of common stock issuable
under the 2000 Indian Plan may be drawn from shares of our
authorized but unissued common stock or from shares of our
treasury shares. Shares subject to any outstanding options
under the 2000 Indian Plan which expire or otherwise
terminate or are surrendered prior to exercise will be
available for reissuance.
Eligibility. Eligible Person means any person,
including officers and directors, employed by BindView or any
Subsidiary or any person who is engaged by the BindView or
any Subsidiary to render consulting or advisory services to
such entity.
Change in Capital Structure. The existence of
outstanding options or stock awards will not affect the right
or power of BindView or its stockholders to make or authorize
any or all adjustments, recapitalizations, reorganizations or
other changes in BindView's capital structure. If BindView
effects a subdivision or consolidation of shares or other
capital readjustments, the payment of a stock dividend or
other increase or reduction of the number of shares of the
stock outstanding, then the shares of stock subject to
outstanding options under the 2000 Plan will be adjusted. If
a recapitalization, reorganization, merger, consolidation,
combination, exchange or other relevant change in BindView's
capital structure occurs, the 2000 Plan provides that the
Board of Directors, acting in its sole and absolute
discretion may effect one of several alternative methods of
exchange, adjustment, acceleration, termination or other
appropriate adjustment. See "Section 5 Acceptance of Options
for Exchange and Issuance of New Options, Subsection
`Consequences of BindView Being Acquired'" of this addendum
for a more detailed description of such alternatives.
Amendment and Termination. The Board may amend
terminate or suspend the 2000 Indian Plan at any time, in its
sole and absolute discretion. The
-6-
Board shall obtain shareholder approval of any amendment to
the extent necessary and desirable to comply with applicable
laws.
Inability to Obtain Authority. The inability of
BindView to obtain authority from any regulatory body having
jurisdiction, which authority is deemed by BindView's counsel
to be necessary to the lawful issuance and sale of any shares
hereunder, shall relieve BindView of any liability in respect
of the failure to issue or sell such shares as to which such
requisite authority shall not have been obtained.
Options. The consideration for the shares to be
issued upon exercise of an option will be (i)cash, certified
check, bank draft, or postal or express money order payable
to the order of BindView for an amount equal to the option
price of the shares, (ii)shares of Common Stock that have
been legally and beneficially owned by the option holder for
at least six months ("Mature Shares"), at their Fair Market
Value (as defined in the 2000 Indian Plan) on the date of
exercise, (iii) payment to BindView, through a
broker-assisted exercise that is approved by the Committee,
for an amount equal to the option price of the shares and
BindView's minimum tax withholding obligation, if any,
(iv)any combination of (i), (ii), or (iii) and/or (v)any
other form of payment which is acceptable to the Committee;
provided, however, that the consideration for the shares to
be issued upon exercise of any option granted hereunder shall
be permitted under Section 8(b) of the 2000 Indian Plan only
to the extent permitted under applicable laws, including
without limitation foreign exchange regulations.
Notwithstanding any other provision of the 2000 Indian Plan,
the Committee shall have the authority to cause an option
holder to utilize a different method of exercise if the
method selected by the option holder could result in adverse
accounting treatment for BindView.
If an option holder ceases to be an Eligible Person,
other than upon the option holder's death or disability, the
option holder may exercise his or her option within such
period of time (of at least thirty (30) days) as is specified
in the option agreement to the extent that the option is
vested on the date of termination (but in no event later than
the expiration of the term of such option as set forth in the
option agreement). In the absence of a specified time in the
option agreement, the option shall remain exercisable for
three (3) months following the option holder's termination.
If, on the date of termination, the option holder is not
vested as to his or her entire option, the shares covered by
the unvested portion of the option shall revert to the 2000
Indian Plan. If, after termination, the option holder does
not exercise his or her option within the time specified by
the Administrator, the option shall terminate, and the shares
covered by such option shall revert to the 2000 Indian Plan.
Options under this Plan may be granted in
substitution for stock options held by employees of other
corporations who are about to become employees of or
affiliated with BindView as a result of a merger or
consolidation of the employing corporation, an acquisition by
BindView of the assets of the
-7-
employing corporation or an acquisition by BindView of stock
of the employing corporation.
Section 14 Material U.S. Federal Income Tax Consequences. (page 27)
This section is only applicable for persons subject to U.S.
federal income tax laws.
NOTICE TO WITHDRAW FROM THE EXCHANGE OFFER
(The following are the changes to the Notice to Withdraw)
The term "New Options" means new option grants to purchase shares of
BindView common stock under the 2000 Indian Plan.
Any reference in the Notice to Withdraw made to tax consequences and
considerations are specific to the United States Tax Code and likely are not
comparable to India tax laws. Therefore, references to tax consequences and
considerations in the Rescission Offer Document are not likely to be applicable
to you, unless you are subject to U.S. federal income tax laws. We urge you to
obtain counsel from a financial or tax advisor to determine any tax
consequences and considerations you may have pursuant to participation in
either the Exchange Offer or the Rescission Offer.
If you wish to accept the Rescission Offer and wish to withdraw one or
more of your option grants from the Exchange, you must complete and sign the
Notice to Withdraw and return your signed Notice to Withdraw form and any other
required documents to us at BindView India Private Limited, 4 th Floor MRSS
Bldg. 5 B. J. Road, Pune, Maharashtra, 411-001, INDIA, Attn: Abhay Joshi. We
are requiring that all hard copy Notice to Withdraw forms be physically
received by 5:00 p.m. Pune time (if mailed, it must be postmarked) on the
Rescission Offer Expiration Date, currently expected to be June 27, 2003 unless
we extend it.
-8-