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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE TO-I/A
(AMENDMENT NO. 2)
(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
TRANSACTION VALUATION* AMOUNT OF FILING FEE*
$794,007.09 $64.24
* 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.
[X] 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: $64.24
Form or Registration No.: Schedule TO
Filing party: BindView Development Corporation
Date filed: May 30, 2003
[ ] 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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INTRODUCTORY STATEMENT
This Amendment No. 2 amends and supplements the Rescission Offer
Statement on Schedule TO filed on May 30, 2003, as amended, relating 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.
Schedule TO is hereby amended to remove the statement "The filing of this
Schedule TO shall not be construed as an admission by BindView Development
Corporation that the Exchange Offer constituted an issuer tender offer for
purposes of the Securities Exchange Act of 1934, as amended, and the rules
promulgated thereunder."
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.
(a)(8)** Amendment No. 1 to Offer to Rescind the Exchange of Certain
Outstanding Options for New Options, dated June 30, 2003.
(a)(9) Election Form And Cancellation Agreement.
(a)(10)** Form of Email to Employees Announcing Extension of Offer to Rescind
the Exchange.
(a)(11)** Form of Email to Eligible Employees of an Amendment to the Offer to
Exchange.
(a)(12) Form of Email to Eligible Employees Providing Clarifying Information
on the Offer to Rescind.
(b) Not applicable.
(d)(1) Incentive to 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).
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(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.
(g) Not applicable.
(h) Not applicable.
* Previously filed on Schedule TO filed with the Securities and Exchange
Commission on May 30, 2003, and incorporated herein by reference.
** Previously filed on Schedule TO-I/A Amendment No. 1 filed with the Securities
and Exchange Commission on June 30, 2003, and incorporated herein by
reference.
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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
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Edward L. Pierce
Chief Financial Officer
Date: July 14, 2003
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Index to Exhibits
EXHIBIT
NUMBER DESCRIPTION
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(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.
(a)(8)** Amendment No. 1 to Offer to Rescind the Exchange of Certain
Outstanding Options for New Options, dated June 30, 2003.
(a)(9) Election Form And Cancellation Agreement.
(a)(10)** Form of Email to Eligible Employees Announcing Extension of Offer to
Rescind the Exchange.
(a)(11)** Form of Email to Eligible Employees of an Amendment to the Offer to
Exchange.
(a)(12) Form of Email to Eligible Employees Providing Clarifying Information
on the Offer to Rescind.
(b) Not applicable.
(d)(1) Incentive to 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.
(g) Not applicable.
(h) Not applicable.
* Previously filed on Schedule TO filed with the Securities and Exchange
Commission on May 30, 2003, and incorporated herein by reference.
** Previously filed on Schedule TO-I/A Amendment No. 1 filed with the Securities
and Exchange Commission on June 30, 2003, and incorporated herein by
reference.
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