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As filed with the Securities and Exchange Commission on October 29, 1998.
Registration No. 333-____________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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BINDVIEW DEVELOPMENT CORPORATION
(Exact name of registrant as specified in its charter)
TEXAS 76-0306721
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3355 WEST ALABAMA, SUITE 1200
HOUSTON, TEXAS 77098
(Address of Principal Executive (Zip Code)
Offices)
INDIVIDUAL STOCK OPTION GRANTS ISSUED PURSUANT TO THE
BINDVIEW DEVELOPMENT CORPORATION STOCK OPTION PLAN
(Full title of the plans)
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SCOTT R. PLANTOWSKY
CHIEF FINANCIAL OFFICER
BINDVIEW DEVELOPMENT CORPORATION
3355 WEST ALABAMA, SUITE 1200
HOUSTON, TEXAS 77098
(Name and address of agent for service)
713/843-1799
(Telephone number, including area code, of agent for service)
With Copy to:
FULBRIGHT & JAWORSKI L.L.P.
1301 MCKINNEY, SUITE 5100
HOUSTON, TEXAS 77010-3095
(713) 651-5151
ATTENTION: ROBERT F. GRAY, JR.
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CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES TO AMOUNT TO BE REGISTERED PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
BE REGISTERED OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION FEE
SHARE (1) PRICE (1)
- --------------------------------------------------------------------------------------------------------------------------
Common Stock, no par 952,093 shares (2) $17.25 $16,423,605 $4,566
value per share
==========================================================================================================================
(1) Estimated in accordance with Rule 457(c) and (h) solely for the purpose of
calculating the registration fee on the basis of the average of the high
and low prices of the Common Stock as reported by the Nasdaq Stock Market
on October 21, 1998.
(2) Represents the aggregate number of shares of Common Stock that may be
issued under two individual option agreements. Includes an indeterminable
number of shares of Common Stock issuable as a result of the anti-dilution
provisions of the BindView Development Corporation Stock Option Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are hereby incorporated by reference in this
Registration Statement:
1. The Amendment No. 4 to Registration Statement on Form S-1 of
BindView Development Corporation, a Texas corporation (the "Registrant"), (Reg.
No. 333-52883) filed with the Securities and Exchange Commission (the
"Commission") on July 23, 1998;
2. The Quarterly Report on Form 10-Q for the quarterly period ended
June 30, 1998 of the Registrant, filed August 13, 1998 with the Commission; and
3. The description of the Registrant's common stock, no par value per
share (the "Common Stock"), contained in Amendment No. 4 to the Registration
Statement on Form S-1 of the Registrant, (Reg. No. 333-52883) filed with the
Commission on July 23, 1998.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), subsequent to the date of the filing hereof and prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 2.02-1 of the Texas Business Corporation Act ("Article 2.02-1")
provides that any director or officer of a Texas corporation may be indemnified
against judgments, penalties, fines, settlements and reasonable expenses
actually incurred by him in connection with or in defending any action, suit or
proceeding in which he is a party by reason of his position. With respect to any
proceeding arising from actions taken in his official capacity as a director or
officer, he may be indemnified so long as it shall be determined that he
conducted himself in good faith and that he reasonably believed that his conduct
was not opposed to the corporation's best interests. In cases not concerning
conduct in his official capacity as a director or officer, a director or officer
may be indemnified as long as he reasonably believed that his conduct was not
opposed to the corporation's best interests. In the case of any criminal
proceeding, such indemnification is mandatory. The Registrant's Bylaws provide
for indemnification of its present and former directors to the fullest extent
provided by Article 2.02-1. The Registrant currently maintains directors' and
officers' insurance to reimburse the Registrant in the event that
indemnification of a director or officer is required.
The Registrant's Bylaws further provide for indemnification of
directors and officers against reasonable expenses incurred in connection with
the defense of any such action, suit or proceeding in advance of the final
disposition of the proceeding.
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The Registrant's Articles of Incorporation eliminate the liability of
directors for monetary damages for an act or omission committed in the
director's capacity as a director, except to the extent a director is found
liable for (i) a breach of such director's duty of loyalty to the Registrant or
its shareholders, (ii) an act or omission not in good faith that constitutes a
breach of duty of such director to the Registrant or an act or omission that
involves intentional misconduct or a knowing violation of the law, (iii) a
transaction from which such director received an improper benefit, whether or
not the benefit resulted from an action taken within the scope of the director's
office or (iv) an act or omission for which the liability of a director is
expressly provided by an applicable statute.
The Registrant's Articles of Incorporation further limit a director's
liability if the Texas Business Corporation Act, the Texas Miscellaneous
Corporation Laws Act or any other applicable Texas statute is hereafter amended
to authorize the further elimination or limitation of the liability of the
directors of the Registrant. If such applicable statute does hereafter eliminate
or limit a director's liability, then the liability of a director of the
Registrant shall be limited to the fullest extent permitted by the Texas
Business Corporation Act, the Texas Miscellaneous Corporation Laws Act and such
other applicable Texas statute, as so amended, and such limitation of liability
shall be in addition to, and not in lieu of, the limitation on the liability of
a director of the Registrant provided by the Articles of Incorporation.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 - Amended and Restated Articles of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.1 to Amendment
No. 4 to the Registration Statement on Form S-1 of the
Registrant, (Reg. No. 333-52883) filed with the Commission on
July 23, 1998 (the "Form S-1")).
4.2 - Bylaws of the Registrant (incorporated by reference to Exhibit
3.2 to the Form S-1).
4.3 - Form of Common Stock Certificate (incorporated by reference to
Exhibit 4.2 to the Form S-1).
4.4 - BindView Development Corporation Stock Option Plan
(incorporated by reference to Exhibit 10.2 to the Form S-1).
4.5* - Nonqualified Stock Option Agreement dated April 15, 1997,
between the Registrant and Scott R. Plantowsky.
4.6* - Grant of Stock Option dated May 13, 1996, between the
Registrant and Christopher J. Sole, as amended by that certain
Grant of Stock Option - Agreement and Amendment No. 1 dated
December 31, 1996.
5.1* - Opinion of Fulbright & Jaworski L.L.P.
23.1* - Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.2* - Consent of Fulbright & Jaworski L.L.P. (included in Exhibit 5.1
to this Registration Statement).
24.1* - Powers of Attorney (contained on page II-4).
* Filed herewith.
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ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment hereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
Provided, however, that paragraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), that are incorporated by reference in this Registration
Statement.
2. That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
3. To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Houston, Texas on October 29, 1998.
BINDVIEW DEVELOPMENT CORPORATION
/s/ ERIC J. PULASKI
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Eric J. Pulaski
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints each of Eric J. Pulaski and Scott R.
Plantowsky his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same and all
exhibits thereto, and all documents in connection therewith, with the Securities
and Exchange Commission, granting said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his or their substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ ERIC J. PULASKI Chairman of the Board, President and October 29, 1998
- ----------------------------------------- Chief Executive Officer
Eric J. Pulaski (Principle Executive Officer)
/s/ SCOTT R. PLANTOWSKY Director, Vice President and October 29, 1998
- ----------------------------------------- Chief Financial Officer
Scott R. Plantowsky (Principle Financial and
Accounting Officer)
/s/ CHRISTOPHER J. SOLE Director, Vice President and October 29, 1998
- ----------------------------------------- Chief Operating Officer
Christopher J. Sole
Director October 29, 1998
- -----------------------------------------
Peter L. Bloom
Director October 29, 1998
- -----------------------------------------
John J. Moores
/s/ RICHARD A. HOSLEY II Director October 29, 1998
- -----------------------------------------
Richard A. Hosley II
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EXHIBIT INDEX
Exhibit Number Description
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4.1 - Amended and Restated Articles of Incorporation of the
Registrant (incorporated by reference to Exhibit 3.1 to Amendment
No. 4 to the Registration Statement on Form S-1 of the
Registrant, (Reg. No. 333-52883) filed with the Commission on
July 23, 1998 (the "Form S-1")).
4.2 - Bylaws of the Registrant (incorporated by reference to Exhibit
3.2 to the Form S-1).
4.3 - Form of Common Stock Certificate (incorporated by reference to
Exhibit 4.2 to the Form S-1).
4.4 - BindView Development Corporation Stock Option Plan
(incorporated by reference to Exhibit 10.2 to the Form S-1).
4.5* - Nonqualified Stock Option Agreement dated April 15, 1997,
between the Registrant and Scott R. Plantowsky.
4.6* - Grant of Stock Option dated May 13, 1996, between the
Registrant and Christopher J. Sole, as amended by that certain
Grant of Stock Option - Agreement and Amendment No. 1 dated
December 31, 1996.
5.1* - Opinion of Fulbright & Jaworski L.L.P.
23.1* - Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.2* - Consent of Fulbright & Jaworski L.L.P. (included in Exhibit 5.1
to this Registration Statement).
24.1* - Powers of Attorney (contained on page II-4).
* Filed herewith.
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