PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement ("AGREEMENT"), dated as of November
6, 2002, is among BindView Development Corp., a Texas corporation (the
"COMPANY"), General Atlantic Partners 27, L.P., a Delaware limited partnership
("GAP 27"), General Atlantic Partners 27, L.P., a Delaware limited partnership
("GAP 44") and GAP Coinvestment Partners, L.P., a New York limited partnership
("GAPCO" and together with GAP 27 and 44, the "Sellers").
BACKGROUND
Each of the Sellers desires to sell and the Company desires to
purchase the aggregate number of shares of Common Stock of the Company set
forth opposite the name of such Seller on Schedule 1.02 hereto (the
"Securities") on the terms and conditions set forth in this Agreement.
THEREFORE, the parties agree as follows:
SECTION I
PURCHASE AND SALE OF SECURITIES
1.01 SALE OF SECURITIES. Each Seller, severally and not jointly,
agrees to sell, assign, transfer and deliver to the Company on the Closing Date
(as defined below) the aggregate number of Securities set forth opposite the
name of such Seller on Schedule 1.02 hereto, and the Company agree to purchase
such Securities from such Seller on the Closing Date, pursuant to this
Agreement.
1.02 PURCHASE PRICE. In full consideration of the sale of the
Securities by the Sellers, the Company shall pay to each Seller on the Closing
Date the aggregate amount set forth opposite the name of such Seller on
Schedule 1.02 hereto, at One Dollar and No Cents ($1.00) per share, for an
aggregate purchase price of Two Million Five Hundred Twenty Five Thousand Nine
Hundred Eighteen Dollars ($2,525,918) (the "PURCHASE PRICE"). The Purchase
Price shall be paid by the wire transfer of immediately available funds to each
Seller's account as set forth on Schedule 1.02.
1.03 CLOSING. The closing of the transactions contemplated by this
Agreement (the "CLOSING") will take place by exchange of closing documents by
telecopier or by other means mutually agreed upon by the parties on November 8,
2002 (the "CLOSING DATE"). At the Closing, each Seller will deliver to the
Company a stock certificate or stock certificates or make available for
electronic transfer shares representing at least the number of Securities being
sold by such Seller, along with a stock power reasonably acceptable to the
Company, against payment to such Seller of its portion of the Purchase Price as
set forth on Schedule 1.02 hereto and in accordance with Section 1.02 of this
Agreement.
SECTION II
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
In order to induce the Company to purchase the Securities, each
Seller represents and warrants, severally and not jointly, to the Company as
follows:
2.01 EXISTENCE AND GOOD STANDING. Such Seller is a limited
partnership duly organized and validly existing under the laws of the
jurisdiction of its formation, and has full power and authority to sell the
Securities being sold by such Seller and to enter into and perform its
obligations under this Agreement.
2.02 AUTHORIZATION. The execution and delivery of this Agreement by
such Seller and the consummation by such Seller of the transactions
contemplated by this Agreement have been duly authorized by all necessary
partnership action on the part of such Seller. No consent, approval, license
from, or exemption of, and no registration, qualification, designation,
declaration or filing with, any court or governmental department, commission,
board, bureau, agency or instrumentality, or any other party, which has not
been obtained as of this date, is or will be necessary for the valid execution
and delivery by such Seller of this Agreement, or the consummation by such
Seller of the transactions contemplated by this Agreement.
2.03 NO CONFLICT WITH OTHER INSTRUMENTS. Neither the execution and
delivery by such Seller of this Agreement, the consummation by such Seller of
the transactions contemplated by this Agreement, nor the compliance by such
Seller with the terms and conditions of this Agreement, will (a) violate any
provision of such Seller's organizational documents, as amended to date; (b)
violate or conflict with or result in a breach of any law, regulation, order,
writ, injunction or decree of any court, arbitrator or governmental
instrumentality to which such Seller is bound; (c) violate or be in conflict
with, or constitute a default (or an event which, with notice or lapse of time
or both, would constitute a default) under, or entitle any party to terminate
any or all of the provisions of, or cause the acceleration of or entitle any
party to accelerate the performance required by, or cause the acceleration of
or entitle any party to accelerate the maturity of any debt or obligation
pursuant to, any contract, agreement, arrangement, commitment or restriction of
any kind to which such Seller is a party or by which such Seller is bound; or
(d) result in the creation or imposition of any security interest, lien or
other encumbrance upon the Securities being sold by such Seller under any
contract, agreement, arrangement, commitment or restriction of any kind to
which such Seller is a party or by which such Seller is bound.
2.04 VALIDITY AND BINDING EFFECT. This Agreement has been duly and
validly executed and delivered by such Seller; and this Agreement constitutes
the legal, valid and binding obligation of such Seller, enforceable against
such Seller in accordance with its terms, except as the enforceability of this
Agreement may be limited by bankruptcy, insolvency or other similar laws of
general application affecting the enforceability of creditors' rights
generally, or by general principles of equity.
2.05 TITLE TO SECURITIES. Such Seller owns, and on the Closing Date
such Seller will own, all right, title and interest (legal and beneficial) in
and to the Securities being sold by such Seller without restriction, other than
restrictions imposed under applicable securities
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laws and restrictions created by the Company. Upon such Seller's delivery of
certificates representing the Securities, duly endorsed for transfer to the
Company, or the release of such Securities for electronic transfer, and the
Company's payment to such Seller of the Purchase Price therefor, the Company
will acquire such Securities free and clear of all liens, charges and
encumbrances, other than restrictions imposed under applicable securities laws
and restrictions created by the Company.
2.06 LITIGATION. There is no (a) action, suit, claim, proceeding or
investigation pending or, to such Seller's knowledge, threatened against or
affecting, such Seller, at law or in equity, or before or by any federal,
state, municipal or other governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, (b) arbitration proceeding
relating to such Seller, or (c) governmental inquiry pending, or to such
Seller's knowledge threatened, against or affecting such Seller, any of which,
if adversely determined, would invalidate or prevent the performance by such
Seller of the transactions contemplated by this Agreement.
2.07 EXPERIENCE. Such Seller has sufficient knowledge and
experience in finance and business that it is capable of evaluating the risks
and merits of its sale of its Securities to the Company. The Company has
answered to such Seller's satisfaction all inquiries made by such Seller to the
Company. Such Seller acknowledges and agrees that, except for information
previously disclosed publicly by the Company, all information provided to such
Seller by officials of the Company is confidential. Such Seller agrees to
maintain such disclosed information in confidence unless such information is
released publicly by the Company.
2.08 BROKERS. Such Seller shall be responsible for any fees and
expenses owed to any agent, broker or finder with which such Seller has made
any agreement or commitment in connection with the transactions contemplated by
this Agreement.
SECTION III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
In order to induce the Sellers to sell the Securities, the Company
represents and warrants to the Sellers as follows:
3.01 EXISTENCE AND GOOD STANDING. The Company is a corporation duly
organized and validly existing under the laws of the State of Texas, and has
full power and authority to acquire the Securities and to enter into and
perform its obligations under this Agreement.
3.02 AUTHORIZATION. The execution and delivery of this Agreement by
the Company and the consummation by the Company of the transactions
contemplated by this Agreement have been duly authorized by all necessary
corporate action on the part of the Company. No consent, approval, license
from, or exemption of, and no registration, qualification, designation,
declaration or filing with, any court or governmental department, commission,
board, bureau, agency or instrumentality, or any other party, which has not
been obtained as of this date, is or will be necessary for the valid execution
and delivery by the Company of this
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Agreement, or the consummation by the Company of the transactions contemplated
by this Agreement.
3.03 NO CONFLICT WITH OTHER INSTRUMENTS. Neither the execution and
delivery by the Company of this Agreement, the consummation by the Company of
the transactions contemplated by this Agreement, nor the compliance by the
Company with the terms and conditions by this Agreement, will (a) violate any
provision of the Company's Certificate of Incorporation, as amended to date, or
the Company's By-laws, as amended to date; (b) violate or conflict with or
result in a breach of any law, regulation, order, writ, injunction or decree of
any court, arbitrator or governmental instrumentality to which the Company is
bound; or (c) violate or be in conflict with, or constitute a default (or an
event which, with notice or lapse of time or both, would constitute a default)
under, or entitle any party to terminate any or all of the provisions of, or
cause the acceleration of or entitle any party to accelerate the performance
required by, or cause the acceleration of or entitle any party to accelerate
the maturity of any debt or obligation pursuant to, any contract, agreement,
arrangement, commitment or restriction of any kind to which the Company is a
party or by which the Company is bound.
3.04 VALIDITY AND BINDING EFFECT. This Agreement has been duly and
validly executed and delivered by the Company, and this Agreement constitutes
the legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency or other similar laws of general application
affecting the enforceability of creditors' rights generally, or by general
principles of equity.
3.05 LITIGATION. There is no (a) action, suit, claim, proceeding or
investigation pending or, to the Company's knowledge, threatened against or
affecting, the Company, at law or in equity, or before or by any federal,
state, municipal or other governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, (b) arbitration proceeding
relating to the Company, or (c) governmental inquiry pending, or to the
Company's knowledge threatened, against or affecting the Company, any of which,
if adversely determined, would invalidate or prevent the performance by the
Company of the transactions contemplated by this Agreement.
3.06 PURCHASE FOR INVESTMENT. The Company is acquiring the
Securities for its own account for investment purposes only and not with a view
toward any resale or distribution of the Securities.
SECTION IIIA
CONDITIONS
3.01A Conditions to the Obligation of the Company to Close. The
obligation of the Company to purchase the Securities, to pay the Purchase Price
therefor at the Closing and to perform its obligations hereunder shall be
subject to the satisfaction as determined by, or waiver by, the Company of the
following condition on or before the Closing Date: The Sellers shall have
delivered the stock certificates representing the Securities and stock powers
or make available the Securities for transfer electronically; and all of the
representations and warranties of
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the Sellers set forth in Section II shall be true and correct on the Closing
Date as though made on such date.
3.02A Conditions to the Obligation of the Sellers to Close. The
obligation of each Seller to sell the Securities being sold by such Seller and
to perform its obligations hereunder shall be subject to the satisfaction as
determined by, or waiver by, the Sellers of the following conditions on or
before the Closing Date: The Company shall have paid the aggregate Purchase
Price for the Securities; and all of the representations and warranties of the
Company set forth in Section III shall be true and correct on the Closing Date
as though made on such date.
SECTION IV
MISCELLANEOUS
4.01 ENTIRE AGREEMENT; AMENDMENTS. This Agreement, together with
the schedule hereto, sets forth the entire agreement of the parties with
respect to the subject matter hereof and supersedes all prior agreements
between them, whether written or oral, with respect to its subject matter. Any
amendment, supplement or modification of or to any provision of this Agreement,
any waiver of any provision of this Agreement, and any consent to any departure
by the Company or the Sellers from the terms of any provision of this
Agreement, shall be effective (i) only if it is made or given in writing and
signed by the Company and the Sellers, and (ii) only in the specific instance
and for the specific purpose for which made or given. Neither the Company nor
the Sellers shall assign any of its rights or obligations under this Agreement
without the written consent of the other parties hereto.
4.02 FEES AND EXPENSES. Each of the parties hereto shall pay its
own fees and expenses incurred in connection with this Agreement or otherwise.
4.03 GOVERNING LAW. This Agreement and the rights and obligations
of the parties under it shall be governed by, and construed and enforced in
accordance with, the laws of the State of Delaware, without giving effect to
the rules and principles of conflicts of laws thereof.
4.04 COUNTERPARTS; FACSIMILE EXECUTION. This Agreement may be
executed in any number of counterparts, each of which when so executed and
delivered shall be deemed an original, but all of which together shall
constitute one and the same instrument. For purposes of this Agreement, a
document (or signature page thereto) signed and transmitted by facsimile
machine or telecopier is to be treated as an original document.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
BINDVIEW DEVELOPMENT CORP.
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Sr. VP / CFO
GENERAL ATLANTIC PARTNERS 27, L.P.
By: General Atlantic Partners, LLC, its General Partner
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: A Managing Member
GENERAL ATLANTIC PARTNERS 44, L.P.
By: General Atlantic Partners, LLC, its General Partner
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: A Managing Member
GAP COINVESTMENT PARTNERS, L.P.
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: A Managing Member
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Schedule 1.02
[Omitted]
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