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EXHIBIT 4.5
NEITHER THIS OPTION NOR THE UNDERLYING COMMON SHARES HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933. THE COMPANY WILL NOT TRANSFER THIS OPTION OR THE
UNDERLYING COMMON SHARES UNLESS (i) THERE IS AN EFFECTIVE REGISTRATION COVERING
SUCH OPTION OR SUCH SHARES, AS THE CASE MAY BE, UNDER THE SECURITIES ACT OF 1933
AND APPLICABLE STATE SECURITIES LAWS, (ii) IT FIRST RECEIVES A LETTER FROM AN
ATTORNEY, ACCEPTABLE TO THE BOARD OF DIRECTORS OR ITS AGENTS, STATING THAT IN
THE OPINION OF THE ATTORNEY THE PROPOSED TRANSFER IS EXEMPT FROM REGISTRATION
UNDER THE SECURITIES ACT OF 1933 AND UNDER ALL APPLICABLE STATE SECURITIES LAWS,
OR (iii) THE TRANSFER IS MADE PURSUANT TO RULE 144 UNDER THE SECURITIES ACT OF
1933.
NONQUALIFIED STOCK OPTION AGREEMENT
OF
BINDVIEW DEVELOPMENT CORPORATION
Bindview Development Corporation (the "Company") hereby grants to Scott
Plantowsky (the "Optionee"), the option to purchase from the Company up to but
not exceeding in the aggregate 35,000 shares of Common Stock, having no par
value, of the Company ("Common Stock") at $33.50 per share, subject to the
following terms and conditions and to the terms and conditions of the Company's
Stock Option Plan (the "Plan"):
1. Exercise. (a) Except as provided herein, the Option granted hereby
shall vest and become exercisable by the Optionee in the amounts and on the
dates listed below:
Date Exercisable Number of Shares
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Immediately 8,750
January 1, 1998 8,750
July 1, 1998 4,375
January 1, 1999 4,375
July 1, 1999 4,375
January 1, 2000 4,375
Notwithstanding the above, each option granted to Optionee pursuant hereto shall
be immediately accelerated and become fully vested if (i) the Optionee's
employment with the Company is terminated by the Optionee with Good Reason, as
defined in the Employment Agreement dated April ___, 1997 (the "Employment
Agreement"), (ii) the Optionee's employment with the Company is terminated by
reason of Optionee's death or disability, and (iii) upon the occurrence of a
Change in Control. As used herein "Change in Control" means (i) the acquisition
by any entity or group of beneficial ownership (within the meaning of Rule
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13d-3 promulgated under the Securities Exchange Act of 1934) of fifty percent
(50%) or more of the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of
directors, (ii) the approval by the shareholders of the Company of any
reorganization, merger or consolidation, or sale or other disposition of all or
substantially all of the assets of the Company, or (iii) the approval by the
shareholders of the Company of a complete liquidation or dissolution of the
Company.
If the Optionee's employment with the Company is terminated by the
Company for any reason other than for "Cause" (as defined in the Employment
Agreement), the Company may, at its election, either (i) immediately accelerate
and fully vest all unvested Options hereunder, or (ii) immediately accelerate
and fully vest one-half of the unvested Options hereunder and pay Optionee
$1,000,000 in cash within thirty (30) days.
Once available for exercise in accordance with the foregoing,
unexercised shares shall remain subject to the provisions of this Option until
termination in accordance with the terms of Paragraph 2 hereof. This Option may
be exercised either in whole or in part and, if in part, from time to time in
part; provided, that this option may not be exercised for less than 500 shares
of Stock (or such lesser number of shares of Stock as is covered by this
Option). Further, that this Option may only be exercised by the Optionee for the
purchase of whole Option Shares and not fractions thereof unless the Company
otherwise agrees.
(b) The Company agrees that the Stock so purchased shall be
and are deemed to be issued to the Optionee hereof as the record owner of such
shares as of the close of business on the date on which this Option shall have
been exercised and payment made for such shares as provided above.
(c) Except as provided in Section 5(a) below, this Option may
be exercised solely by the Optionee during his lifetime or after his death by
the person or persons entitled thereto under his will or the laws of descent and
distribution or pursuant to a qualified domestic relations order as defined by
the Internal Revenue Service Code of 1986, as amended (the "Code") or Title I of
the Employee Retirement Income Security Act, or the rules thereunder ("ERISA").
(d) The purchase price of the shares as to which the Option is
exercised shall be paid in full at the time of exercise. Such purchase price
shall be payable in cash or, at the option of the Optionee, in Common Stock
theretofore owned by such Optionee equal in value to the full amount of the
purchase price (or any combination of cash and such Common Stock). For purposes
of determining the amount, if any, of the purchase price satisfied by payment in
Common Stock, such Common Stock shall be valued at its fair market value on the
date of exercise. Any Common Stock delivered in satisfaction of all or a portion
of the purchase price shall be appropriately endorsed for transfer and
assignment to the Company. The Optionee shall not be or have any of the rights
or privileges of a shareholder of the Company in respect of any shares
purchasable upon the exercise of any part of the Option unless and until
certificates representing such shares shall have been issued by the Company to
the Optionee.
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2. Termination. The Option hereby granted shall terminate and be of no
force and effect with respect to any shares not previously purchased by the
Optionee upon the earlier to occur of the following:
(a) ten (10) years from the date of grant of this Option as
set forth on the signature page hereto; or
(b) twelve (12) months after termination of employment of the
Optionee if Optionee terminates his employment without Good Reason (as
defined in the Employment Agreement); or
(c) twenty-four (24) months after termination of employment of
the Optionee for any other reason.
If, three months prior to the expiration date specified above, the
Common Stock is not then traded on the New York Stock Exchange, American Stock
Exchange, or the NASDAQ, Optionee shall have the right (the "put") to require
the Company to purchase all or any portion of the Common Stock acquired by
Optionee upon the exercise of his option hereunder at a price equal to the fair
market value of such shares of Common Stock. The put option shall be exercised
by delivery of written notice to the Company and the closing of the put
transaction shall take place at the Company's principal executive offices on the
date specified in such notice, which date shall not be more than ten (10) days
after the date the notice is delivered. As used in this Agreement, the fair
market value of a share of Common Stock shall be equal to 1.56 times the gross
sales of the Company during the twelve (12) month period ending on the last day
of the month immediately preceding the date on which such notice is given,
divided by the number of shares of outstanding Common Stock at such date on a
fully diluted basis under generally accepted accounting principles.
Notwithstanding the foregoing, the Company may delay exercise of the put
hereunder if it extends the expiration date of the Option under the Plan and
this Agreement for six months and, if the Common Stock is traded on the New York
Stock Exchange, American Stock Exchange or NASDAQ before the end of such six
month extension, the Optionee's put shall terminate. The Company may further
delay the exercise of the put by an indefinite renewal of such six month
extensions.
3. Method of Exercise. Subject to the limitations set forth herein,
this Option may be exercised by written notice mailed or delivered to Bindview
Development Corporation 3355 West Alabama, Suite 1200, Houston, Texas 77098,
which notice shall (a) state the number of shares with respect to which the
Option is being exercised, and (b) be accompanied by either Common Stock or a
check, cash or money order payable to the Company in the full amount of the
purchase price.
4. Optionee Representations. (a) The Optionee hereby represents and
acknowledges that he is acquiring this Option and the underlying shares for his
own account for investment and not with a view to, or for sale in connection
with, the distribution of any interest
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in or part thereof, provided that nothing shall prohibit or restrict the sale of
such shares by the Optionee in compliance with the Securities Act of 1933, as
amended, and the rules and regulations thereunder. If any law or regulation
requires the Company to take any action with respect to the Option or shares
covered hereby, the time for delivery thereof, which would otherwise be as
promptly as possible, shall be postponed for the period of time necessary to
take such action.
(b) The Optionee acknowledges that this Option does not
qualify for treatment as an incentive stock option pursuant to the Code.
5. Restrictions on Transfer.
(a) The Optionee's rights hereunder are personal. The Optionee
may not transfer Optionee's rights or interest in this Option other than by will
or by the laws of descent and distribution or pursuant to a qualified domestic
relations order as defined by the Code or ERISA. Notwithstanding the foregoing,
if at any time hereunder the Plan is amended to permit such gift, the Optionee
may give all or any portion of his rights hereunder to a member of his immediate
family, a lineal descendant, or a trust, partnership or similar entity for their
exclusive benefit.
(b) Unless this Option or the shares of Stock deliverable upon
the exercise hereof, as applicable, have been registered, this Option and the
certificates representing such shares shall be stamped or otherwise imprinted
with a legend substantially in the following form:
NEITHER THIS OPTION NOR THE SHARES OF STOCK INTO WHICH THIS
OPTION IS EXERCISABLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AND NEITHER THIS OPTION NOR SUCH SHARES MAY BE SOLD, TRANSFERRED
OR OTHERWISE DISPOSED OF EXCEPT AS EXPRESSLY PERMITTED UNDER THE TERMS
OF THIS OPTION.
(c) In connection with the Securities Act of 1933, as amended
("1933 Act"), and other applicable federal and state security laws
(collectively, the "Securities Laws"), upon exercise of this Option, unless a
registration statement or similar filing under such Acts is effective with
respect to the shares issuable upon the exercise of this Option, the Company
shall not be required to issue such shares unless the Company has received
evidence satisfactory to it to the effect that the Optionee is acquiring such
shares for investment and not with a view to the distribution thereof and that
such shares may otherwise be issued without registration under the Securities
Laws. Further, no sale, transfer or other disposition of any of such shares
shall be made by the holder thereof unless (i) such sale, transfer or other
disposition of such shares is covered by an effective registration statement (on
the then appropriate form) under the Securities Laws or (ii) if requested by the
Company, such holder shall have furnished an opinion of holder's counsel (which
opinion and counsel shall be satisfactory to the Company in
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it reasonable discretion) with respect to the sale, transfer or other
disposition of such shares as not requiring registration under the Securities
Laws.
6. Arbitration. Any controversy or claim arising out of or relating to
the issuance of this Option, or the issuance or any other matter hereunder
relating to the shares issuable upon the exercise hereof, or the actual or
alleged breach of this Option, or the rights or duties or obligations of the
Company or the Optionee hereunder, shall be settled by binding arbitration
administered by the American Arbitration Association in the City of Houston in
accordance with the rules of such association. Judgment upon the arbitration
award rendered may be entered in any court having jurisdiction thereof, and all
rights or remedies of the Company, the Holder and their successors to the
contrary are hereby expressly waived. The costs in connection with any
arbitration proceeding under this Section 6 shall be assessed against the
parties in the manner decided by the arbitrator(s).
7. Tax Withholding. the Optionee further agrees that the Company may
withhold other cash compensation due to the Optionee in an amount equal to any
required withholding amount under federal or state income tax laws owing as a
result of this Option and that the Optionee will pay to the Company any
additional cash, if necessary, to satisfy such withholding requirement. The
Company, at its option, may also retain and withhold Common Stock issued upon
the exercise of this Option in an amount necessary to satisfy such withholding
requirement.
8. Employment. Nothing within this Option shall be construed to impose
upon the Company or any affiliate any obligation to employ or maintain any other
affiliation with the Optionee.
9. Governing Laws. This Option shall be interpreted, construed, and
enforced in accordance with the laws of the State of Texas to the extent not
otherwise governed by mandatory provisions of the securities laws of the United
States.
Dated: April 15, 1997 BINDVIEW DEVELOPMENT CORPORATION
By: /s/ ERIC PULASKI
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Name: Eric Pulaski
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Title: President
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This Option has been accepted
by the undersigned, subject
to the terms and provisions of
the Plan and of this Agreement.
/s/ SCOTT R. PLANTOWSKY
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Print: Scott R. Plantowsky
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