EXHIBIT 1
to AMENDMENT NO. 4
to SCHEDULE 13D
BindView Development Corporation
Common Stock
PURCHASE AGREEMENT
August 18, 1999
CIBC World Markets Corp.
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Each of General Atlantic Partners 44, L.P., a limited partnership
organized under the laws of Delaware ("GAP 44"), GAP Coinvestment Partners, L.P.
("GAPCo."), a limited partnership organized under the laws of New York, and JMI
Equity Fund III, L.P., a limited partnership organized under the laws of
Delaware ("JMI") (the "Selling Stockholders"), propose, subject to the terms and
conditions contained herein, to severally sell to you ("CIBC"), 1,007,781
shares, 246,651 shares and 900,000 shares, respectively (the "Shares"), of the
Common Stock no par value per share (the "Common Stock"), of BindView
Development Corporation, a corporation organized under the laws of Texas (the
"Company").
1. Sale and Purchase of the Shares.
On the basis of the representations, warranties and agreements
contained in, and subject to the terms and conditions of, this Agreement:
(a) GAP 44 agrees to sell to CIBC, and CIBC agrees to purchase
from GAP 44, at a net price of $19.25 per share (the "Price") 1,007,781 Shares;
(b) GAPCo. agrees to sell to CIBC, and CIBC agrees to purchase
from GAPCo., at the Price, 246,651 Shares; and
(c) JMI agrees to sell to CIBC, and CIBC agrees to purchase
from JMI, at the Price, 900,000 Shares.
2. Delivery and Payment. Delivery by the Selling Stockholders of the
Shares to CIBC for its account, and payment of the purchase price by wire
transfer of immediately available funds to the Selling Stockholders for the
Shares purchased from the Selling Stockholders, against delivery of the
respective certificates therefor to CIBC, shall take place at the offices of
CIBC World Markets Corp., Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
at 10:00 a.m., New York City time, on the third business day following the date
of this Agreement, or at such time on such other date, not later than 10
business days after the date of this Agreement, as shall be agreed upon by the
Selling Stockholders and CIBC (such time and date of delivery and payment are
called the "Closing Date").
3. Representations and Warranties of the Selling Stockholders. Each of
GAP 44, GAPCo. and JMI hereby severally and not jointly represents and warrants
to CIBC as follows:
(a) This Agreement has been duly authorized, executed and
delivered by it and, assuming due authorization, execution and delivery by CIBC,
constitutes its valid and legally binding agreement, enforceable against it in
accordance with its terms.
(b) The execution and delivery by it of this Agreement and the
performance by it of its obligations under this Agreement (i) will not
contravene any provision of applicable law, statute, regulation, or any
agreement or other instrument binding upon it or any judgment, order or decree
of any governmental body, agency or court having jurisdiction over it or (ii)
does not require any consent, approval, authorization or order of or
registration or filing with any court or governmental agency or body having
jurisdiction over it, except such as may be required by applicable securities
laws and have been obtained or made.
(c) It has, and on the Closing Date will have, valid and
marketable title to the Shares to be sold by it free and clear of any lien,
claim, security interest or other encumbrance, including, without limitation,
any restriction on transfer, contractual or otherwise.
(d) It has, and on the Closing Date will have, full legal
right and power to sell, assign, transfer and deliver the Shares to be sold by
it to CIBC in the manner provided by this Agreement.
(e) Upon delivery of and payment for the Shares to be sold by
such Selling Stockholder pursuant to this Agreement, CIBC will receive valid and
marketable title to such Shares free and clear of any lien, claim, security
interest or other encumbrance.
(f) The sale of Shares by it pursuant to this Agreement is not
prompted by its knowledge of any material information concerning the Company or
its Subsidiaries which is not set forth in the Registration Statement on Form
S-3 (SEC File No. 333-84267) (the "Registration Statement") and related
Prospectus, as amended or supplemented prior to the Closing Date (the
"Prospectus"), covering the transactions contemplated hereby.
4. Conditions of the CIBC Obligations. The obligation of CIBC to
purchase the Shares is subject to each of the following terms and conditions:
(a) Notification that the Registration Statement has become
effective shall have been received by CIBC and a Prospectus Supplement in form
and substance reasonably satisfactory to CIBC setting forth, among other things,
the terms of the sale and plan of distribution of the Shares and naming CIBC as
an additional selling shareholder shall have been timely filed with the
Commission pursuant to Rule 424 (b) under the Securities Act of 1933, as
amended.
(b) No order preventing or suspending the use of the
Prospectus (and Prospectus Supplement) shall have been or shall be in effect and
no order suspending the effectiveness of the Registration Statement shall be in
effect and no proceedings for such purpose shall be pending before or threatened
by the Securities and Exchange Commission (the "Commission"), and any requests
for additional information on the part of the Commission (to be included in the
Registration Statement or the Prospectus or otherwise) shall have been complied
with to the satisfaction of the Commission and CIBC.
(c) The several representations and warranties of the Selling
Stockholders contained in this Agreement shall be true and correct when made and
on and as of the Closing Date as if made on such date. The Selling Stockholders
shall have performed all covenants and agreements to be performed by them and
all the conditions contained in this Agreement required to be performed or
satisfied by the Selling Stockholders shall be satisfied at or before such
Closing Date.
5. Termination. This Agreement may be terminated with respect to the
Shares to be purchased on the Closing Date by CIBC by notifying the Selling
Stockholders:
(a) in the discretion of CIBC at any time on or before the
Closing Date: (i) if on or prior to such date, any domestic or international
event or act or occurrence or change in general political or economic conditions
has materially disrupted the securities markets in the United States such as to
make it, in the judgment of CIBC, inadvisable or impracticable to resell the
Shares; (ii) if there has occurred any new outbreak or material escalation of
hostilities or other calamity or crisis the effect of which on the financial
markets of the United States is such as to make it, in the judgment of CIBC,
inadvisable to proceed with the transactions contemplated hereby; (iii) if
trading in the Shares has been suspended by the Commission or trading generally
on the New York Stock Exchange, Inc., on the American Stock Exchange, Inc. or
the Nasdaq National Market has been suspended or limited, or minimum or maximum
ranges for prices for securities shall have been fixed, or maximum ranges for
prices for securities have been required, by said exchanges or by order of the
Commission, the National Association of Securities Dealers, Inc., or any other
governmental or regulatory authority; or (iv) if a banking moratorium has been
declared in the State of New York by the State of New York or Federal authority;
or
(b) at or before the Closing Date, that any of the conditions
specified in Section 4 shall not have been fulfilled when and as required by
this Agreement.
6. Miscellaneous. The respective representations, warranties and
agreements of the Selling Stockholders and of CIBC set forth in or made pursuant
to this Agreement shall remain in full force and effect, regardless of any
investigation made by or on behalf of CIBC or the Selling Stockholders or any of
their respective officers, directors or affiliates and shall survive delivery of
and payment for the Shares.
This Agreement has been and is made for the benefit of CIBC and the
Selling Stockholders and their respective successors and assigns and no other
person shall acquire or have any right under or by virtue of this Agreement. The
term "successors and assigns" shall not include any purchaser of Shares from
CIBC merely because of such purchase.
All notices and communications hereunder shall be in writing and mailed
or delivered or made by telephone or telegraph if subsequently confirmed in
writing, (a) if to CIBC, c/o CIBC World Markets Corp., Xxx Xxxxx Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Telecopy: (000) 000-0000, Attention: Xxxxxxx
Xxxxxxxx, with a copy to Xxxxxx X. Xxxxxxx, Esq., Xxxxxx, Xxxxx & Xxxxxxx LLP,
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 and (b) if to the Selling
Stockholders, (i) if to GAP 44 or GAPCo., c/o General Atlantic Service
Corporation, 0 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, Telecopy: (203)
622-8818, Attention: Xxxxx X. Xxxxx and Xx. Xxxxxx X. Xxxxxx, and (ii) if to
JMI, c/o JMI Equity Fund III, L.P., 00000 Xxxx Xxxxx Xxxx, Xxxxx 000, Xxx Xxxxx,
Xxxxxxxxxx 00000, Telecopy: (619) 259- 4843, Attention: Xxxxxxx X. Xxxxx, III.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without regard to principles of conflict of
laws.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
Please confirm that the foregoing correctly sets forth the agreement
among us.
Very truly yours,
GENERAL ATLANTIC PARTNERS 44, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC,
Its General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-In-Fact
GAP COINVESTMENT PARTNERS, L.P.
By: /s/ Xxxxxx X. Xxxxxx
------------------------
Name: Xxxxxx X. Xxxxxx
Title: Attorney-In-Fact
JMI EQUITY FUND III, L.P.
By: JMI ASSOCIATES III, L.L.C.
Its General Partner
By: /s/ Xxxxxxx Xxxxx III
-------------------------
Name: Xxxxxxx Xxxxx III
Title: Managing Member
CIBC WORLD MARKETS CORP.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
